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Full text of "The All India Reporter 1926"

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^< OU 164799 > 5 

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TO 

THE LEGAL PROFESSION 

IN GRATEFUL EECOGNITION OP 
THEI3 WARM APPRECIATION AND SUPPORT 



PATNA HIGH COURT 
1926 

Chief Justice* : 

The Hon'ble Sir Thomas Dawson Miller, Kt., K. C. 

Sir Jwala Prasad, Kt., B. A., LL. B., Rai Bahadur (Offg). 

Puisne Judges: 

The Hon'ble Sir B. K. Mullick, Kt., I. C. S. 

" Jwala Prasad, Kt., B. A., LL. B., Rai Bahadur. 
Mr. P. R. Das, Barat-Law. 

L. C. Adami, I. C. S. 

Sir John Alexander Sfcrachey Bucknill, Kt., K. 0., Bar-at-Law. 

Mr. R. L. Ross, M. A., I, C. S. 

" H. F. E. B. Poster, I. C. S. 
<> Knlwant Sahay, B. L. 

T. S. Macpherson, M. A., I. C. S., Bar-at-Law (Acting). 

" P. K. Sen, M. A., LL. M., (Cantab), Bar-at-Law (Acting). 




EDITORIAL COMMITTEE 

BAHADUR G. S, RAO, Ex* Judge, High Court, Bombay. 
l. SUDISH CHANDEA*BOY, M.A.* LL.B., Ph, D., Bar-aHaw t Calcutta. 
Suit M. V.SFOSHI, Kfc.' f K.c.I.E., Ex-Law Member, C. P. Government. 
V. B. PANDIT, Bar-at-law, Nagpur. 

EAO, B.A., B.L., Vakil, High Court, Madras, Editor, Journal 
, B.A., I&.B., High Court Vakil, Nagpur [Section 

EDITORIAL STAFF 

MB. S. G. GADGIL, B.A., LL.B., High Court Vakil, Bombay 
MB. G.13. JOSHI, B.A., LL.B., Pleader, Nagpur. 
MB. D. D, DATAB, B. so., LL.B., Plaader, Nagpur. 

REPORTERS 

Privy Council 

(1) Dr. A. Majid, LL.l)., Barat-Law, London. 

Allahabad 

(2) Mr. Saila Nafch Maker ji, B.A., B.L., Vakil, High Court, Allahabad. 

Bombay 

(3) Mr. B. K. Dosai, M.A., LL.B., Advocate, High, Court, Bombay. 
(4^; Mr. S. 0. Joshi, M.A., LL.B., Advocate, High Court, Bombay. 
(6) Mr. B. D. Mehta, B.A., LL.B., Vakil, High Court, Bombay. 

Calcutta 

(6) Mr. Pramatha Nafch Banerjee, M.A., B.L., Vakil, High Court, Calcutta. 

(7) Mr. Narain Chandra Ear, B.L., Vakil, High Court, Calcutta. 

Lahore 

(8) Mr. Atflolak Bam Kapur, B.A. (Hons.), 'LL.B., Advocate, High Court, Lahore. 

(9) Mr. Anant Earn Khosla, B.A., (Hotts.), LL.B., Advocate, High Court, Lahore. 
(10) Mr. Kedar Nath Chopra, B.s.c., LL.B., Advocate, High Court, Lahore. 

Madras 

(11) Mr. P. E. Srinivasa lyengar, M.A., B.L., Vakil, High Court, Madras. 

(12) Mr. N. Srinivasa lyengar, M.A., B.L., Vakil, High Court, Madras. 

Nagpur 

(13) Mr. M. Bhawani Shankar Niyogi, M.A., LL.M., Advocate, High Court. 

Nagpur. 

(14) Mr. K. V. Deoskar, B.A., B.L., High Court Pleader, Nagpur. 

Oudh 

(J5) Mr. Surendra Nafch Eoy, M.A., LL.B., Vakil, Lucltnow. 
Patna 

(16) Mr. Subal Chandra Muzumdar, M.A., B.L., Vakil, High Court, Patfta. 

(17) Mr. Laxfnidhar Mahanfcy, B.A., B.D., M.L.C., Vakil, Circuit Court, Guttack. 

(18) A. J. Eoberfcson, Bar*at-Law, Rangoon. 

Slnd 

^(19) Mr. P. K. Vaswani, ]?L.B M Barat-Law, Karachi. 

(10) Mr, Kishiochand Wadhumal, B.A., LL.B., Pleader, Karachi. 



THE ALL INDIA REPORTER. 

1926 



PATNA HIGH COUrt 

NOMINAL INDEX 

[241 OASES] 

Absence of Star denotes Cases of Small or Provincial Important 
% Indicates Cases of Great Importance 
Indicate cases of Very Great Importance 



Abdul Ghaffar v. F. B. Dowin 
Abdul Gaffar v. F. B. Downing 
: Achutanand Jha v. Surjanarain 

Jha t 

*Achutta Bam v. Jainandan 

Towary 
Aghori Koori v. Kishundeo 

Narayan 
Ajodhya Prasad v. Eamkhelawan 

Singh 

Aklu v. Emperor 

"Ambika Prasad Singh v. Commis- 
sioner for Income-tax, Bihar 
and Orissa 

Ambika Shig v, Emperor 
Amril Lai Seal v. Jagafc Chandra 

,Thakur 

*Anant Potdar v. Mangal Potdar 
Anmole Kuer v. Kamla Dutt 
*Anwar All v. Dooghar Munici- 

pality 9 
Asharfi Dhimar v. Mahommad 

Dindalal - 
'Ashloke Sin&h v. Bodba Ganderi 

15 B 

Badri Chaudhry v. Emperor 
*Badri Gope v. Emperor 
*Badri Narmn Singh v. Kailash 

. Gir , 

*Badri Sahu v. Peare Lil Misra 
*Bahadur Singh Maharaj v. A. H. 

Forces 

*Baidyanath Jiu v. Har Dutt Dwari 

Baijnath Prasad Singh v, Firm of 
Hand Bam Das 



246 
465 

427 
474 

16 

421 
446 



256 

368 



27 
:192 

449 



125 



20 

237 

239 
140 

478 
205 

353 



.Baijnath Eai v. Mangla Prasad 

Narayan J 

Baiju Lai Marwari v. Thakur Pra- 

sad Marwari :U'> 

Balak Singh Bhumij v. Srikanta 

Manji 524 

Bal Gobind Thakur v. Emperor 39^ 
: Barhamdeo Kai v. Emperor 36 

Bashitt ^arayan Singh v. Jjiti- 

deshwary Prasad Singh 537 

Blmsucleo Bhagat v. Sh. Kadir 359 

*B atisa Kuer v. Eaja Eam Pandey 192 

:; B. & N. W. By. Co. v. Tupun Dan S84 

Bengali Gopo v. Emperor 400 

Bhairo Math Eoy v. Shanke Pahan 605 

Bhatu Earn Modi v. Fogal Eam 141 

"Bhnpendra Karain Mander v. 

Janeswar Mander 53^ 

Bigna Knmhar v. Emperor 440 

Bihari Lai Mitter v. Tannk Lai 

Mander 397 

37 C 

Chakauri Lai v. Deo Chand 

Mahton 01 

Chandra Mouleshvvar Prasad v 

Hemnalini Debi 410 

Chandra Prasad v. Emperor 299 

Chhakauri Lall v, Isher Singh % I9r> 
Chofce Lai Kand Kishoro v, Tula 

Singh 561 

Chotolal Sahu v. Gumani Cbau- 

dhury 432 

'Commissioner of Income*tax, 
Bhihar d Orisa v. Shiva Prasad 
Singh l 109 

44 



NOMINAL INDIX, 1926 PATNA 



*Dangal Bam v. Jaimangal Saran 
Debi Dayal Singh v. Mt. Gan fc a 

Kuer 

*Debi Prasad v. Jaldhar Mahton 
Deonara^an Singh v. Bam Prasad 
*Deshi Sugar Mill v. Tupsi Kahar 
Dhuplal Sahu v. Bhtkha Mahto 
Dinanath Bai v. Rama Bai 
*Dinda>al Bai v. Indra^an Bai 
Dindayal Singh v. Baj Keshwar 

Narayan 
^District Board, Monghyr v. Sheo* 

dutt Singh 

Durga Singh v. Bam Dai Kuer 
*Dwarika Singh v. Emperor 
56 E 

*E. I. By. Go. v. Bhimraj SriJal 

v. Chinmay Charan 

Sanyal 

* v Goharrjhan Das 

:; v. Kishun Chand 

* Emperor V. Govind Singh 

* . v phagunia Bhuian 

v . Zahir Hauler 

63 F 

Fagu Tanti v. Chotolal Tanti 
*Fairduddin Ahmod v. Abdul 

Wahab 

Ttfarman Khan v. Emperor 
Farzand Ali v. Emperor 
Faujdar Bai v. Emperor 
*Falul Rahman v. Mfc. Kokila 
*j?irangi Singli v. Durga Singh 
70 G 

G a nosh Lall v Bisosar Pandey 49 

Gangadhar Misra v. Dobendrabala 

Dasi 249 

*Gobardhan Das v. lagat Narain 291 

Gobinda Bauri v. Kristo Sardar 64 

Gokul Tafcwa v. Emperor 58 

v Goswami Laloo Lai Sharmn v, 

Badhoy Lai Goswami 17] 

^G. 1. P. Uy. v. Datti Kara 148 

, v Kameshwar Prasad 190 

78 H 

"Habibur Balimau, M(i. v. Qasin 

Hussain 404 

*|Iafsa, Bibi y. Kaniz Fatina 111 

Hajo, Bibi v. liar Sahay Laf 62 

"Hamir, P. & P., Co. 'v. Suresh 

Chandra Sarkar 348 

Harbans Namin Singli \. Maho- 

ruecj Sayeerl 51 

Hargobind Singh v. Kiuhundeyal 

Gopo 436 

Harihur Singh v. Emperor 182 



364 

68 
288 
143 
606 
363 
512 
472 

495 

438 
503 
464 

413 

295 
165 

5^5 
566 

l ? 46 

277 
433 
:,47 
25 
320 
292 



*Hari Sankar Bai v. Tapai Kuer 3J 
Harnandand Das v. Atul Kumar 

Prasad 5* 

Hemchandra Mahto v. Prem 

Mahto '154 

Hira Lai v. Sarabjit Kamkar 498 

*Hitendra Singh v. Maharajadhiraj 

of Darbhanga 147 

*Hit Narayan Singh v. Emperor 517 
91 I 

^Ibrahim Hussain Khan v. Sheo- 

pratap Narain 129 

**Iltaf Khan v. Emperor 362 

^Ishwardas Marwari v. Biseswar 

Lai Marwari 
94 J 

Jagannath Lahu v. Sbbogobind 

Prasad 128 

Jagat Narain Singh v. Tulsi 

' Chamar 513 

Jai^dip Singh v. Harku Singh 37 

Jageshwar Jha v. Mahtap Singh 516 

v Jagwa Dhannk v. Emperor 23S 

*Jang Bahadur Singh v. Emperor 244 

*Janki Sahay v. Lalbehari Lai 33 

^Jawahirlal v. Fateh Mahton 

Jeoharan Singh v. Bamkishun Lai 5: 

Jhaldhari Sinph v. Pershad Bharti 33,. 

Jhapsi Sao v. Bibi Aliman ' 2631 

JHondra Nath Chatterji v. Jasoda L 

Sahun 1^ 

Jodhi Singh v. Chhofcu Mahto 3S*c 

Mogendra Prasad Narayan Sinha 

v. Mangal Prasad Sahu 160 

Jngal Kishore v. Sonabati Kumari 51f 
Mugal Sarkar v. Baj Mangal Pra- 
sad 18? 
Jung Singh v. Dnlarchand Mahto 53!i 
111 K 



*Kali Bai v. Tulsi Bai 
Kamakhya Narain Singh v. Jawa- 

hir Khan 

Kamla Prasad v. Murli Manohar 
'Kanhaiya Lai Sahu v. Suga Kuar 
"Karu Singh v. Emperov 
Keshabji Pitamhar y. Shashi 
Bhusan 



20? 



369 



385 



Kesho Prasad Singh v. Kirtarath 577 
Kesho Prasad Singh v. Bam 

Swarup Ahir 175 

Kesho Prasad Singh ^v. Sham- 

nandan Bai 504 

Keshub Pra^ttd Singh v. ^arihar 

Prasad Singh * 54 

::i Khiid Chand Mahton v, Mt. 

Meghni ' 46L V 

Khodoijatnl Kobra v. Harihar 

Misser 209 



NOMINAL INDEX, 1926 PATNA 



*Kkndi Rai v. Lalo Eai 259 

**Khursaidi Begum v. Secy, of State 321 
Kirtya Nand Sinha v. Ram Lai 

Dube 580 

Kishore Ahir v. Emperor 32 

Kishun Mandar v. Emperor 424 

Kokil Ghand Ram v. Banbahadur 

Singh 539 

*Krishnaballabh Sahay v. Governor 

of Bihar 305 

Krishna Chandra v. Raja Mahakur 251 
Kuldip Saran Singh v. Raghunan- 

dan Singh 461 

Kttldip Singh v. Kamakhya Narain 

Singh 241 

Kosunda Nayadi Collieries v. 

Bholanath Sarkar 430 

134 L 

Lachman Sahay v. Gouri Charan 

Mahton 423 

Laureotins Ekka v, Diikhi Koeri 111 
'Lekraj Mahton v. Jang Bahadur 

Singh 23 

137 M 

Madhab Poddar v. Lall Singh 

Bhumji 403 

Madhu Sudan Dev v. Panu Parhi 358 
MaJhusudan Singh v. Jeolal 606 

M. &8. M. By. Co. v.Gopal Rai 

!Ram Chunder 273 

Mahari Dhangar v. Baldeo Narain 525 

*Mahomed Afzal v. Lachman Singh 409 

*Mahomed Ibrahim v. Chhafcto Lai 274 

Mahomed Sadiq v. Ba^git Sah 150 

*Mahomed Yasin v. Emperor 302 

Makhru Dusadh v. Emperor 367 

^Manisty, P. H. v. J. V. Jameson 380 

Mathura Prasad Singh v. Jageswar 

Prasad Singh 260 

Midnapore Zamindari Co., Ltd. v. 

Muktakeshi Pat rani 340 

*Midnapur Zamindary Co. v. Ram 

Kanai ingh Deo ISO 

Mina Mahto v. Doman Mahto 564 

152 N 

Nandau Singh v. Siaram Singh 67 
Nanhak Sao v. Emperor 493 

Karesh Chandra v. Charles Joseph 

Smith 408 

*Nathan Prasad Shah v. Kali 

Prasa^ 77 

Nazir Hussain v. Anlad Haider 460 
*Nilmacfhab v. Empefor 279 . 

*Nimi Narayan Sinha v. Emperor 499 
158 P 

^Parmeshwar Dayal v. Emperor 316 
x Parehan Sahi v. Richardson " 289 

ri Dai v. Naimish Chandra 184 



**Pereira, H. G. v. E. I. Ry. Co. 109 

*Permanand Kumar v. Bhon Lohar 457 

*Pershad Tiwari v. Emperor 5 

*Pheku Pande v. Gena Lai 481 

Prasanna Kumar Banerji v. Kal- 

yan Charan Mandai 80 

Pratap Udainath Sah Deo v. Lai 

Gobind Nath 537 

168 R 

*Radhey Lai v. E. I. Ry. 40 

Raghunandan Prasad v. JIahabir 

Mahton 545 

Raghunandan Thakur v. Kishun* 

deo Narain Mahta 257 

"Rajdulari Bibi v. Krishna Bibi 269 
Raj Gopal Acharjya v. Upendra 

Acharjya 528 

"Raj Kishore Lai Nand Keolyar v. 

Alam Ara Bo^am 28 

**Ram An tar Pando v. Shanker 

Dayal 87 

Rarnbilakh Singh v. Dinajpure 

Mixamat Municipality 462(1) 

Rambirich Ahir v. Emperor 569 

Ramchandra Modak v. Emperor 214 
x Ramchandra Singh v. Jang Baha- 
dur Singh 17 
Ram Charan Singh v. Emporor 29 (1; 
^Ramdhani Sin^h v. Kewal Mani 

Bibi ~ 156 

'Rameshwar Singh v. Durga 

Mandar 14 

Rameshwar Singh v. Kitab All 487 
Rameshwar Singh v. Puran Chan- 
dra 213 
'Rameshwar Singh v. Rajo Ghou- 

dhrain 210 

Rameswar Narayan Hingh v. 

Mahabir Prasad 47 

Ramgobind Singh v. Sital Singli 489 
: *Rara Golam Sahu v. Chintaman 

Singh F. B. 218 

Ramishwar Narain Sin,i*h v. Maha- 
bir Prasad 401 
Ramjee Prasad v. Bishun Dtitt 194 
"Ramjbari Koer v. Kashi Nath 

Sabai 337 

Ram Karan Mahto v. Dahur 

Mahton 450 

Ramkhelawan Sahu v. KulcUp 

Sahay 15a 

Ram Lagan Singh v. Mary Coffin f 572 
Ramlakhan Pande v. Dharamdeo 

Misir 575 

Ramlai Singh v. Mt. Septi 295 

Ram Lochandas v. Nandi Jha 485 

*RampritlAhir v. Emperor 560 

Ramsakal Rai v. Emperor 139 



8 



NOMINAL INDEX, 1926 PATNA 



Bam Saran Singh v. Mahomed Jan 

Khan 34 

**Bam Sumran Prasad v. Govind 

Das 582 

Bamsunder Isser r. Emperor 253 

Bamyad Dusadh v. Emperor 211 

**Banjit Narain Singh v. Bambaha- 

dur Singh 81 

*Bazia Begum v. Mahammad Daud 508 
*Bukmin Das v. Deva Singh 351 

Bup Lai Singh v. Secy, of State 258 
207 S 

Sadhn Sao v. Awadh Bihar Saran 

Singh 71 

*8adhu Saran Pande v. Nanda 

Kumar Singh 276 

Sagar Mull v. Hira Maharaj 164 

Sarda Devi v. Bam Lonchan 

Bhagat 444 

Satyadeva Sahay v. Jlmmel Kuer 519 
Satya Niranjan Chakravarty v. 

Sushila^BalaDasi 103 

Shama Kant Lai v. Kashi Nath 

Singh 549 

Shamahor Narain Singh v. Maho- 
med Sale 29 (2) 
*Sheo Charan Singh v. Kishno Kuer 146 
Sheo Dani Kuor v. Bamji Upadhya 76 
Sheodhar Prasad v. Bamsaroop 

Singh 318 

*Sheo Prasad v. Emperor 267 

Sheoratni, Mt. v. Munshi Lai 542 

*Shripat Singh v. Naresh Chandra 94 



**Siban Bai v. Bbagwant Dass 176 

Sib Sahai Lai v. Bijai Chand 

Mahtab 197 

*Sitaram Das v. Emperor 173 

*Sita Bam Singh v.Khul Lai Singh 255 

*Sobhifc Mallah v. Emperor 70 

*8one Kuar v. Baidyanath Sabay 462(2) 

**8ubda Santal v. Emperor 29 s 

Subedar Bai v. Bambilas Bai 162 

:|f Sudha Krishna Mukerji v. E. I. , 

By. Co. 137 

230 T 

Tarkeshwav Prasad Tewari v. 

Devendra Prasad Tlwari 180 

Tarni Singh v. Satnarain * 

;:c Thakur Sao v. Abdul Aziz 170 

Thirathman Jha v. Gnnjeswari 

Kuor 529 

Tikari Municipality v. Alain Ara 

Begum 547 

Tilakdhari Lai v. Abdul Wahab 

Khan 112 

Tulshi Prasad Bam v. Chairman, ' 

Durrraon Municipality 181 

' :< Tunia v. Emperor 168 

238 U 

*Uma Habiba Bibi v. Mt. Basoolan 497 
Uma Jha v. Chctu Mandor B9 

240 W 

Wajibunnissa Begum v. Babu Lai 
Mahton -JW 

L241] 



THE ALL INDIA REPORTER 

1926 



PATNA HIGH COURT 
SUBJECT INDEX 



Absence of Star denotes Cases of Provincial or Small Importance, 

# Indicates Cases of Great importance. 
* * Indicate Cases of very Great Importance. 



Abatement of suit 

See Civil P. C., 0. 22 

Adverse Possession 

Mortgagee cannot acquire 

against mortgagor 51 2<; 

Trespasser can acquire right 
only in land encroached upon 385ft 

Plea of, rimy be raised in ap- 
peal for tho first time, if based 
on original pleadings 192 

-Trespasser abandoning posses- 
sion before statutory period is 
over Rightful owner's title is 
not affected 130/ 

Cosharers Mere exclusive 
possession of a portion for pur- 
poses of management is no ons- 
ter A specific denial of other 
co-sharer's right to possession 
is necessary. 112 

Amendment of Pleadings 

See CIVIL P. C., 0. 6, R, 17 

Amendment of Decree 

-See CIVIL P. C., S. 151 

Appeal 

Right to second appeal First 

appejjate Court hearing appeal, 
where no appeal lay Second 
apjfcal lies 

Approver 

See. (1) CRIMINAL P. Ct,8. 337 

(2) EVIDENCE ACT, S. 133. 
Arbitration 
Sfe CIVIL, P. C., SCH. 2.- 



B 

Benami 

Onus of proof is on party set- 
ting up pica 
Bengal Cess Act (9 of 1880) 

S. 6 Lessee of mining rights 

need not pay cess to lessor 

Ss. 41 and 107 Valuation 

statement prepared under the 
Act Status of tenant under 
Bengal Tenancy Act is not 
affected- Civil Court cannot 
question the statements 175 

Bengal Estates Partition Act 
(5 of 1897) 

Land not belonging to estate 

under partition allocated 
Claimant of the land can bring a 
suit for its recovery \vithin 12 , 
years 4&L 

S. 119 Objection as to cer 

tain plots not belonging to the 
estate under partition raised-^ 
No adjudication given on the 
question but the plots allotted 
in the final partition award 
Civil suit by objector is not 
barred 421 

S. 119 Collectorate partition 

after purchase of raiyati holding 
by co-sharer Allotment as 
bakasht land to takhta of 
another co-sharer Partition 
does not take away privilege of 
purchasing co-sharer S. 119 is 
no bar * 268 



10 



SUBJECT INDEX, 1926 PATNA 



Bang Eat. Partition Act 

-- S. 119 Partition proceedings 
are not binding on tenure- 
holder even though he is one of 
the proprietors 162 

Bengal Ferries Act (1 of 1885) 

S. 9- Scope Th ! approval of 

the Commissioner is limited to 

the term of tbo lease and not 

to the whole lease 318& 

- S. 16 Limits of the ferry 
should be known 520a 

-- Ss. 16 and 6 Public ferry is 
one declared to bo so under 
S. (> or Besula-fcion 6 of 1819, or 
Bengal Act 1 of 1866 520c 

-- S.s. 18 and 16 Plyin- along 
one bank is no offence 5206 

-- Ss. 28 and 16 Persons main- 
taining ferry and carrying per- 
Bonn for hire' is guilty and not 
his servants 520(7 

Bengal Ghatwili Land 
Regulation (29 of 1814) 

--- Gha^wal can bo a mourashi 
mokararidar 

Bengal Land Revenue Sales 
Act (11 of 1859) 

- Begister D kept by Collector 
erroneous Full description of 
the estate not given Notifica- 
tion describing estate co Tocfc- 
ly Sale cannot bo set aside 

-- Sale under All proprietors 
need not bo mentioned in the 



proclamation 

-- Ss. 2 and 3 Liability of es- 
tate to sale depends on three 
dates 

- Ss, 2 and ] Original kist- 
bandi unknown Dates fixed 
Hnder S. 3 are the kist dates 549/> 

Bengal Municipal Act (3 of 
1884) 

-- 8s, 6 (3) and 85- A Adjacent 
plots held by same person as 
owner, one by survivorship and 
the other by purchase, consti- 
tute one holding S jparate 
assessments are riot legal 

- Ss. 114 and 113 Objection to 
assessment disposed of without 
reference under S. 114 Disposal 
is Ultra vires Subsequent pro- 

, oeedings regarding assessment 
and collection arc also ultra 
vires 647a 

- S. 363 Assessment paW un- 

iler protest, proceedings oemg 



1B1 



Beng. Mancl. Act 

ultra vires Suit for recovery 
need not be filed within three 
months 

Bengal Pafni Regulation (8 
of 1819) 

S. 5 Transfer of tenure- 
Fees not paid Landlord can 
ignore transfer and proceed 
against transferrer for rent 
Sale for arrears of rent cannot 
bo challenged by unregistered 
transferee 

Ss. 5 and Unregistered 

assignee of leaso can have sale 
set aside on the gro'indof fraud, 
but not on ground that he wan 
not p&rty to rent realization 
proceedings 465o 

3.11 Landlord can realize 

rent after one year under ordi- 
nary law, i.e., Bengal Tenancy 
Act 46W 

S. 11 B. T. Act applies whero 

P"tni law is silent 4=65e 

Bengal RegulationUl of 1793) 

Re-ad j istment of revenue does 

not conf -r new title. 577 a 

(3 of 1872) 

S. 27 Landlord's interest in 

raiyati holding can bo sold in 
execution of a decree 
Bengil Revenue Sales (Act 11 
of 1859) 

-S. W Purchaser at sale for 

arrears suing for recovery of 
landDefendant claiming land 
as lakh iraj Onus is on the plain- 
tiff to show that a*J Permanent 
Settlement the land was entered 
as rnal and w.as included in the 
estate as such 

S. 37, Bxcep. 4 Exception 

does not mean that lease, must 
be one for excavating a tank 
thereon * 
S. 37 Encumbrance -r- Rev- 
enue sale does not ipso facto an- 
nul an encumbrance Steps 
have to be taken by purchaser 
to annul it Denial of pur- 
chaser's title by tenants liefore 
encumbrance is annulled does 
not create forfeiture 
Bengal Tenancy Act (8 of 
1885 * 

Landlord can realise 

alter one year under 
law r i. e.,B.T.Acfc 



SUBJECT INDEX, 1926 PATNA 



u 



B. T. Act 

S. 5 Question whether ten- 
ant is tenure-holder or raiyat de- 
pends on question of fact 9J> 

S. 5 (5) Tenant whether 
tenure-holder or raiyat Test 
is purpose and extent of tenancy 9a 

S. 5 (5) Tenant whether 

tenure-holder or raiyat Re- 
clamation and cultivation by 
tenant by his own plough is 
inconsistent with tenant being 
tenure-holder only 9d 

S. 22 (2) Co-sharers Part 

of proprietary right of a part of 
holding falling to a co-sharer 
purchasing the entire holding 
at rent sale His stat% is not 
affected 580 

8. 22 (2) Collectors, te parti- 
tion after purchase of raiyati 
holding by a co-sharer Allot- 
ment as bakasht land to takhfa 
of another co-sharer Partition 
does noii take away privilege of 
purchasing co-shaver Bengal 
Estates Partition Act (5 B. C. 
of 1897), S. 119 is no bar 263 

-S. 29 Tenant must prove 
1iha<. bo is an occupancy raiyat 
tefore invoking aid of S. 29 156/> 

S. 40 Crop-cutting report of 

Deputy Collector is pi blic docu- 
ment and is admissible to prove 
quantity of crops cut 4:366 

S. 46, sub.-S. 7 Kent at en- 
hanced rate is payable from the 
date of acceptance of agreement 

420 

S. 52 Landlord should show 

additional area in tenants' pos- 
session to claim additional rent 
Onus then is on tenant to prove 
that the additional area be- 
longed to him previously 197/- 

S.*53 Contract not in ado 

with reference to boundaries but 
a specific block not specifiable 
except by area Area is the es- 
sence Additional area found 
with tenant Tenant is liable 
tojpay enhanced rent? 197a 

S. 60 Registered and un- 
registered theKadars Claim by . 
registered thekadar Tenant 
^ can not plead payment to un- 
' registered thekadar 532 

^ S. 61 Bona fide deposit of 
whole amount is valid though 



71 



B. T.Act 

in fact it turns out to be less 426 

S. 70(2) Notice served by 4 

Amin Person alleging absence 

of notice must prove it 4:955 

S. 70 (4) No fresh notice 

need be given tinder sub-S (4) 4950 

S. 71 Suit for rent Bhauli 

rent Tenants removing crops 
before appraisement Landlord . 
is entitled to claim rent on the 
basis of best crops in the neigh- 
bourhood on similar lands 436d 

S. 85 (2) Lease registered 

contrary to S. 85 (2) throiigh 
misapprehension of registering 
officer Ko collusion between 
lessor and lessee to evade the 
provision Lease is inoperative 
beyond nine years 9a 

S. 87 There is no abandon- 
ment where tenant lusiifruc- 
tuarily mortgages his holding 
but still resides in the village 

S. 1Gb (b) Zamindar is not 

presumed to be in possession of 
raiyati holding Kecord-of- 
rights recording land to be occu- 
pancy holding Onus is on 
zemindar to provo that the land 
is his rualik zerait 

S. 1Gb (b) Entry in the re- 

cord-of-rights as to the tenant's 
right to trees does not carry the 
presumption of correctness 

S. 105 Application under 

Sole plaintiff karta of the family 
and the sole recorded proprietor 
His sons need not be joined 
as plaintiffs 

S. 158 B(2) Sale without 

notice is not a nullity hut a 
mere irregularity 505 

S. 158 B- Tenure passes to 

purchaser only after actual sale 
uncfor decree 21&* 

* S. 170 B. 58 of O. 21, Civil 

P. C., does not apply to rent 
decrees 210 and 2136 

S. 174 Sale set aside No 

appeal lies at the instance of 
auction purchaser 56* 

S. 174 Deposit made tfnlly 

but in slightly erroneous man: 
ner Sale need not beset aside, 55ft 

8. 182 Person not a raiyat 

buj> residing in village home- 
stead S. 182 does not apply 



485 



68ft 



461 



12 



SUBJECT IN&BX, 1926 PATNA 



B. T. Act 

but Contract Act applies Inci- 
dents of permanent tenancy 
pointed out 600 

--- Ss. 188 and 105 Application 
under S. 105 Sole plaintiff 
karta of the family and the sole 
recorded proprietor His sons 
need not be joined as plaintiffs 401 
S. 195 (o) Tenancy Act ap- 



Encumbered 



plies where Patni law is silent 
Bengal ' Troop* Transports 
and Travellers ' Assistance 
Regulation (11 of 1806) 

S. 3(1) Native officer can 
impress cart against owner's 
consent 258/> 

Bihar and Orissa Municipal 
Act (7 of 1922) 

----- S. 377 (1) nd (2) 8. 377 (0 
and (2) do not cover cases of 
contract 462(1) 

Bihar and Orissa Public De- 
mand Recovery Act (4 of 
1914) 

--- S. 4G Recorded patnidar 
holding hcnami for another or 
transferring by private arrange- 
ment- Beneficiary or transferee 
cannot sue to net aside rent de- 
cree on grounds other than 



Burden of Proof 

--- Sw EVIDENCE ACT, SF. 10 1 
to 103 

C 

Cause of Action 

-- See CIVIL P. C., O. 2, R. 2 

Cheating 

- See PENAL CODE, S. 415 

Chota Nagpur Encumbered 
Estates Act (6 of 1876) 

--- Before amendment by Act 8 
B and O. C., of 1922, B. 3 01. (1) 
and 8. 12, 01. (2) SchemQ of 
payment of debts by manager, 
and approval of scheme by Com- 
missioner Period during which 
estate is under protection under 
'Ehonoibered Estates Act i* 
excluded in computing limita- 
tion Manager incurs no liabi- 
lity in drawing up scheme 
Determination of debt by man- 
ager is not judicial decree 260 

-8*. 3 and S3 Usufructuary 
mortgage by proprietor Decree 
for rent against tenants Estate 



Chota Nagur 
Estates Act 

vested in manager Decree can-* 
not be executed 524 

Chota Nagpur Tenancy Act 
(6 of 1908) 

Definition of agricultural land 

appears purposely omitted 527k 

S. 46 Suit for ejectment of 

under-tenant by his immediate 
landlord is barred as applica- 
tion lies under S. 46 to Deputy 
Commissioner 403 

Ss. 71, 139 and 139- A Amend- 
ing Act (1920) was not in- 
tended to take away vested 
rights uyler old Act 561& 

-8s. 71 and 189 Suit for pos- 
session by tenant against land- 
lord Question of tenant's sta- 
tus is immaterial .' 561 c 

S. 83 Any order passed 

under S. 83 relates to the draft* 
record only 369/* 

Ss. 89, 83 and 258 Order 

under 89 of Attestation Officer 
can bo revised by Settlement 
Officer and such revision bars 
a suit in civil Court by reason 



of S. 258 
S. 139 Section 



646 



contemplates 
cases where relationship of land- 
lord and tenant is admitted 
Where tenancy is not admittecl 
suit for possession of occupancy 
holding cannot bo entertained 
by Deputy Commissioner but 
can bo maintained in civil 
Court 64<: 

S. 139 A Suit for ejectment 

of under-tenant by his imme- 
diate landlord is barred as ap- 
plication lies under S. 46 tp 
Deputy Commissioner * 40& 

S. 1H9 (2) Person sued .need 

not be raiyat Bent payable 
must bo in respect of agricul- 
tural land ' 627* 

S. 231 Section does not ap- 
ply to suits to set aside sale on 
the ground of fraud ^ 401ft 

S. 258 Fraud is the onjy 
ground to remov& the bar 528/> 

Ss. 258 and 84 (3) Becord W 
rights recording a tenure to 1& 
non-resumable Suit to declare 
that tenure is resumable is not 
barred* " 369* 



SUBJECT INDEX, 1926 PATNA 



Chota Nagpur Tenancy 
(Amendment Act) (6 of 
1620} 

-Ss. 38 and 39 The Amending 

Aot was not intended to take 
away vested rights under the 
old Act 56la 

S. 139 A Suit c or declara- 

fcidn as occupancy tenant and for 
possession is barred 363 

S. 231 Suit to set aside an 

execution sale on the ground of 
fraud is governed not by S. 231 
but by Limitation Act, Art. 95 47 
Civil Procedure Code (5 of 

1908) 

- S. 11 Execution purchaser 
whether the decree be a money 
decree or mortgage decree, re- 
presents judgment-debtor for 
purposes of the section 478a 
S. 11 Go-defendants Con- 
flict of interest between co- 
defendants and necessity to 
adjudicate on that dispute to 
give relief to plaintiff are neces- 
sary to make the decision res- 
judicata between them 478c 
S. 11 Application challeng- 
ing validity of a compromise 
decree under S. 151 dismissed 
Subsequent suit for the same 
purpose is not barred 289 

S. 11 An erroneous decision 

on a point of law can be res 
judicata 288# 

S. 11 Cause of action a recur- 
ring one Still, matter directly 
and substantially in issue is res- 
judicata 288A 

S. 11. Competent Court 
Suit dismissed but one issue 
decided against defendant De- 
fendant appealing Appellate 
Court wrongly holding appeal 
incompetent but deciding the 
issue in defendant's favour 
Finding is res judicafca 87^ 

Ss. 37 and 38 Court passing 

decree abolished and re-estab- 
lished It can'exocute decree if 
it cc$ild try the suit to which 
decree relates 209a 

S? 37 (b) A'Court that is 

abolished can be revived 209/> 

'S.-41 Court to which a decree 
i transferred for execution 
cfefcses to have jurisdiction after 
14 has taken action under S V 41 274 



Civil P. C. 

S. 47 Order on question of 
notice under O. 21, B. 22, is one 
in execution 397<* 

S. 47 First appellate Court 

deciding that property compris* 
ed in the decree is not saleable 
Second appeal lies 202e 

S. 47 Partition suit Decree 

directing separation of plain- 
tiff's share only but leaving 
shares of defendants joint 
Separate suit by defendants 
inter se for separate possession 
of shares is not barred 154^ 

S. 65 Decree- holder allowed 

to bid but on conditions His 
failure to fulfil the conditions 
does not not affect the sale in 
favour of highest bidder 335 

' S. 73 Another decree-holder 

applying for distribution First 
decree-holder alleging thai 
other's decree to be collusive and 
applying for judicial enquiry 
Application should not bo enter* 
tained 497 
* S. 92 Suit to establish exis- 
tence of trust itself is not 
within S. 92 321* 
-S. 100 Question as to notice 
is one of law 495c 
S. 100 Question of law de- 
pending on question of facfc riot 
raised in lower Court was nofc 
allowed 4016 

; S. 100 Question of fact based 

on no evidence will be interfered 
with 187(5 

S. 100 Construction of a 

title-deed is a question of law 49a 
S. 100 Misreading of docu- 
mentary evidence Finding is 
not binding 496 

S. 100 Question whether 

tenant is tenure-holder or 
raiyat under B. T, Act uUi- 
mately depends on question of 
fact 9b 

: * S. 109 Final order Or % der 

allowing appeal under S. 5, 
Limitation Act, is not ; but 
order refusing to allow would 
amount to, final order 102 

S. 115 Failure to forthwith 

apply in revision on interlocu- 
tory prder does not bar right to 
apply when the case is over . 5754 



SUBJECT INDEX, 1926 PATNA 



Civil P. C. 

* 8. 115 ~ Valuation of suit 

tinder 8, 7 (4) (c), Court-fees 
Act, found to be reasonable by 
lower appellate Court High 
Court will not interfere 334 

* 8. 115 Power should not be 

exercised whpre technicalities are 
served at expense of justice 

F.B. 218a 

8. 116 Inadmissible evidence 
admitted Finding based on 
other evidence Finding is not 
vitiated 29(2)d 

8.115 Sub-Deputy Collector 

refusing application to pro- 
aeoute Collector on appeal sett- 
ing aside the order and making 
a complaint exercises judicial 
powers and revision lies 25a 

8. 151 Amendment of decree 

A, original guardian of minors 
dying before appeal from preli- 
minary decree B appointed as 
guardian in appeal Final de- 
cree mentioning A to be guar- 
dian Amendment to substitute 
B for A should be allowed 564 
8. 151 and O. 41, K. 23 Re- 
mand on the ground that suit 
was not properly tried No 
appeal lies where remand is 
under 8. 151 and not O. 41, 
B. 23 516 

* S. 151 Remand order is ap- 
pealc^le only if it amounts to 
decree Order reversing trial 
Court's decree is not a decree 
unless order itself decides any 
point for determira f .ion 457 

* 8. 151 Application challeng- 
ing validity of a compromise 
decree under S. 151 dismissed 
Subsequent suit for the same 
purpose is not barred 289 

* S. 151 Wrong dismissal of 

application for ascertaining 
mesne profits for non-pa>ment 
of Court-fees cannot be reviewed 
fr t it can be restored under 
8. 101 F. B. 218d 

* 8. 151 Injunction against 

person outside jurisdiction can 
be issued if he has submitted to 
jurisdiction 171 

* S. 151 Section does not 

necessarily apply whenever no 
other remedy is open % 276 

* 0. 1, H. IRent suit A per 



Civil P. C, 

son who alleges to be transferee 
from a co-sbarer landlord, but 
who is not recognized as snob 
by the plaintiffs-proprietors, can- 
not be joined in a rent suit 
against the wishes of the plain* 
tiffs 519 

0. 1, R. 8Commnnity of in- 
terest is the essence of represen- 
tative suit 321/1 

' 0. 1, R. 10 Transfer of par- 
ties raising value cf subjeofc- 
ma f iter higher than Court's juris- 
diction Court should add par- 
ties and return the plaint 28fc 

* O. 1, 0. U, R. 1 and S. 115 

Refusal to add a party as plain- 
tiff S. 115 does not apply If 
fair trial would be denied, Gov- 
ernment of India Act, S. 107, 
will apply 207>, 

' -O. Si, R. 2 Causes of action 

different but substantial evi- 
dence common to both Reliefs 
arising from both should be 
claimed in the same suit 

O. I ,R. 1 Advocate can be 

verbally appointed 

O. 6, R. 17 Amendment 

prayed for after evidence Ques- 
tion of fact to be raised by am- 
endment already raised and evi- 
dence adduced Amendment 
should be allowed 

O. 7, R. 2 -Valuation will 

refer to profits before and after 
suit where both are claimed 
(Per Mullick, /.) F. B. 218<; 

: O. 7, R. 10 Transfer of par- 
ties raising value of subject- 
matter higher than Court's juris- 
diction Court should add par- 
ties and return the plaint 28fc 

0. 8, R. 6 Equitable set off 

can be claimed though . tinie- 
barred 77J> 

O. 9, R. 13 Application for 

restoration decided according to 
law High Court will not inter- 
fere under Government o India 
Act, S. 107 37 

0. 9, R. 13 Applicatiofc to. 

set aside ex parte decree allowed 

Mo revision lies 29(2)a 

O. 16^ R. 1 Application at a 

late stage to send for Char.kida* 
Register from Deputy Commis- 
sioner and admit it in 



SUBJECT INDEX, 1926 PATNA 



Civil P. C. 

Application should not be re- 
fused 5456 

O. 20, B^ 12 Application is 
no plaint ; ifc can be oral (Per 
Jwala Prasad, J.) F. B. 218e 

O. 20, E. 12 Dacrea for 

mesne profits passed Applica- 
tion for ascertainment cannot be 
dismissed 14 la 

O. 20, B. 12 Application for 

mesne profits Law of limita- 
tion does not apply 141 b 

O. 21, B. 11 -Heading and 

column 8 blank No correct 
entry in column 6 No list of 
properties Sheet No. 2 blank 
No copy of decree attached 
Names of decree- holders not 
given Application returned 
Time given for supplying 
defects Defects supplied bj- 
yond time Application is 
bat red 533 

O. 21, R. 16 Decree-holder of 

a decree-holder is not .transferee' 
within B. 16 320 

0. 21, B. 22 Ord3r on ques- 
tion of notice is one in execu- 
tion 397 

O. 21, B. 22 Application to 

set aside execution sale on tho 
ground of want of notice is 
governed by the three years' 
rule of lim't&tion under Art. 181, 
Limitation Act 397<? 

O. 21, B. 58 Bule does not 

apply to rent decrees by virtue 

of Bengal Tenancy Act, S. 170 2136 

O. 21, B. 58 -Bule does not 

apply to rent decrees by virtue 

of Bengal Tenancy Act, S. 170 210 

O. 21, Br. 66 and 72 Auc- 
tion-purchaser, whether decree* 
holder or not, cannot be com- 
pelled to bid higher than or up 
to the proclaimed price 146 

O. 21, Br. 66 and J2 Price 

in proclamation is not* an exact 
estimate Court cannot compel 
decree-holder to bid up to or 
higher than the proclaimed 
price * 140 

O. 2>Br. 90 and 96 All par- 
ties affected by an application 
under B. 90 need not be parties 
to the application , but that they 
should have notice 2666 

21, B. 92 Notice There 



Civil P. C. 

is no limitation for notice under 
the rule 966* 

- O. 22, B. 4 One of the heirs 
brought on record in time 
Suit or appeal does not abate 276a 

- 0. 22. Br. 4 and 9 Bach of 
the appellants is entitled to ap- 
ply under the rules Indepen- 
dently 2766 

-- 0. 22, B. 4~ Finding that a 
deceased plaintiff's heirs were 
not necessary parties to applica- 
tion to set aside ex-pavte decree 
is not revisable 29(2)6 

-- O. 22, B. 6 Decree against; a 
dead person is a nullity 504f/ 

- O. 23, B. 1 Permission to 
withdraw given, on condition of 
paying defendant's costs, not 
mentioning that suit will stand 
dismissed if costs not paid, with- 
in prescribed time Fresh suit 
is not barred for non-payment 
of costs Bemedy is not to pro- 
ceed with the fresh suit 
costs are paid 

: - 0. 23, B. 1 Withdrawal of 
suit allowed on certain condi- 
tions Conditions not fulfilled 
Suit is not automatically dis- 
missed but is deemed as pending 409 

1 -- 0. 23, B. 1 Application made 
for permission to withdraw 
with liberty to bring fresh suit 
on same cause of action Pjr> 
mission granted No mention 
made about liberty to bring suit 
Liberty to bring fresh suit 
will be de 'tnod as granted 

- 0. 23, B. 1 Plaintiff bonnd 
to fail owing to substantial 
defect in plaint Permission 
cannot be granted 

- 0. 25, B. 1 Official Assignee 
adopting proceedings filed by 
insolvent plaintiff is 

giving security for 
curred prior to his 



472. 



259 



128 



liable for 
costs in- 
becoming 



plaintiff % 533 

- 0. 26, B. 4 Plaintiff having 
no choice of fornm Commis- 
sion may be issued for his exa-m 

i nation 2T7 

- 0. V6, B. 10 Beport of Com- 
missioner is notbin^ing 469(2) 

-- 0. 26, B. 12 If Commis- 
sioner's report is unsatisfactory 



SUBJECT INDEX, 1926 PATNA 



Civil P. c. 

another Commissioner should be 
/appointed 159 

KX 29 ,B. 2 Suit against Bail- 
way Company -Proper name to 
be described is the one under 
which it carries on business 
If through, error agent is made 
defendant and not the Company 
and Company is real defendant, 
Buit may proceed against Com- 
pany 10 

O. 32, B. 3 Defendant alleg- 
ing to be minor Issue should 
be framed and decided Court's 
opinion about defendant's ap- 
pearance is not sufficient 489 

rQ. 34, B. 1 Suit by prior 

mortgage without joining puisne 
mortgagee Puisne mortgagee 
is not bound either by decree 
in such suit or sale in execution 
Purchaser being in possession 
for more than 20 years does not 
affect rights of puisne mort- 
gagee 337a 

6. 34, B. 1 Mortgage suit by 

Hindu joint family Non-joinder 

of members is fatal only where 

strong reasons exist 207& 

O. 34, B. 14 Decree declaring 

s a charge on certain property of 
defendant Charge can be en- 
forced in execution -Separate 
suit is not necessary 31 

fy 39, B. 1 Court should be 

satisfied before granting tempo- 
rary injunction as to there being 
a serious question and as to the 
probability of plaintiff's success 318a 

O. 39, B. ISuit for declara- 
tion only No permanent in- 
junction claimed Whether in- 
terlocutory injunction should be 
granted (Quaere) 3l8r 

O. 39, B. 1 Injunction 

against person outside jurisdic- 
tion can be issued if liO| has sub- 
mitted to jurisdiction 171 

O. 41, B. 19 Appeal dismis- 
sed for failure to deposit print- 
ing costs Application for res- 
toration is one for review and 
not one under O. 41, B. 19 27a 

0. 41, B. 23Bemand on the 

ground that suit; was not pro- 
perly tried No appeal lies 
where remand is under 8. 151, 
and not under O. 41, B. 23 516 



Civil P. c. 

* O. 41, B. 23 Bule applies if 

whole suit is remanded When 
remand is on a portion of suit; 
it is not under B. 23, and no ap- 
peal lies 514 

O. 41, B. 23 Bemand order 

is appealable only if it amounts 
to decree Order reversing trial 
Court's decree is not a decree 
unless order itself decides any 
point for determination 457 

> o. 47, B. 1 Wrong dismissal 

of application for ascertaining 
mesne profits for non-payment 
of CourHees cannot be reviewed, 
but it can be restored under 
Civil P. C., 8. 151 (Per Jwala 
Prasad, J.) F. B 

O. 47, B. 1 Appeal dismissed 

for failure to deposit printing 
costs Application for restora- 
tion is one for review and not 
under O. 41, B. 19 

Sch. 2, para. 16 Appeal on 

grounds other than those in 
para. 16 is incompetent 164a, 

Commissions 

See CIVIL P. C., O. 26 

Compromise 

Pleader authorized to compro- 
mise Compromise is valid ' 
unless fraud or collusion is proved 73c 

Confession 

See EVIDENCE ACT, Ss.24 <fc 30 

Contract 

-Completed contract Setting 

aside Inadequate consideration 
amounting to fraud iaground for 
seting aside 539<r, 

-Mortgagor selling equity of * * 

redemption Purchaser promis- 
ing to pay the mortgage money 
Mortgagee not a party to the 
agreement Purchaser Is not 
personally liable to mortgagee 
for mortgage money 474 

Contract Act (9 of 1872) 

Ss. 16 and 17 Inadequate 

consideration may lead to in- 
ference of fraud or undue in- 
fluence 5396 

S. 19 Completed contract 

Setting aside-*-Inadequate con- 
sideration amounting to fraud 
is ground for setting aside 539<t 

* S. 23 Gift by bride's parents 

fo bridegroom and his relation 
in .consideration of marriage 



SUBJECT IHDEX, 1926 PATNA 



17 



Contract Act 

re not prohibited Gifts ac- 
tually made cannot be recovered 
although they may not be en- 
forceable by suit 58 2c 

Ss. 59, 60 and 61 In the ab- 
sence of any direction from 
debtor, creditor may appropriate 
payment in chronological order 
of debts This right of creditor 
continues until he has com- 
municated the appropriation to 
the debtor 330 

S. 68 Debt by guardian for 

necessaries Decree for, is exe- 
cutable against minor's pro- 
perty 399 

S. 74 Contract to hold pre- 
mises for 11 years and after 
that to hold at thrice the rent 
or to take fresh settlement is 
enforceable 

S. 74 Decrees whether on 

compromise or contest Doc- 
trine of penalty does not apply 

S. 78 Payment of purchase 

money does not determine pass- 
ing of title Court will construe 
contract according to intention 
of parties as to when property is 
to pass 353a 

S. 78 He who enables third 

person to occasion loss must 
suffer it Principles explained 3536 

S. 108 Steam launch Cer- 
tificate of survey is not a docu- 
ment of title 353c 

Court-fees Act (7 of 1870) 

c S. 5 Appeal wrongly assessed 

by Taxing OfficerKefund o 
Cpurt'fees cannot be ordered by 
bhe High Court 147 

" S. 7 (iv) (b) Partition suit- - 

Defendants need not pay Court- 
fee 15i6 

* S. 7 (iy) (c) Two reliefs not 

co-exjfcensive and both necessary 

S. 7 (i v ) (c) will apply 403 

S. 7 (vi) (c) Civil P.O., S. 115 

Valuation found to be reason- 
able by lower appellate Court 
tjigh Court will not interfere 
in revision 

^8. 7 (iv) (c) Declaratory suit 

Plaintiff obtaining ad interim 

injunction in lower Court, but 

losing the suit and in appeal 

. seeking same relief Ad interim 

1926 N. S. T. 



249 



Court fees Act 

prayer brings the case under 
01. (c). 

- S. 7 (v) Where the suit is 
one for possession of land after 
determination of the question 
of title and the title is gone 
into, the case falls within S. 7 
(v) and the Court-Pee is payable 

on the market-value of the land 251 

- S. 11 Court-fee is payable on 
future mesne profits from date 
of suit but cannot be ordered to 
be paid on pain of dismissal of 
suit even on ascertaining the 
profits - F. B. 2lfc> 

- S. 11 First part applies to 
final decree including future 
profits (Per Jivala Prasad, J.) 

F. B. 218/ 

- S. 27 Patna Stamps im- 
pressed with " for use in tho 
High Court only" are not invali- 
dated for use in subordinate 
Courts 408 

- Sch. 2, Art. 10 Article pres- 
cribes fees only and does not 
create necessity for an authority 296c 

- Sch. 2, Art. 10 Written 
power of appointment filed even 

by a barrister must be stamped 246 
Criminal Breach of Trust 

- See PENAL CODE, S. 409 
Criminal Procedure Code (5 

of 1898) 

- (amended in 1923), S. IAp- 
plication of Code to pollfb is, 
but to Magistrate is not, barred 

by S. 1 (Per Adami, J.) 27f:& 

* - S. 4 (j) "High Court" for 
purposes of revision against ac- 
quittal from proceedings from 
Sonthal Parganas is Commis- 
sioner of Bhagalpur 449 

- S. 37 Cognizance of offence 
beyond powers specified in Sch. 
4 and S. 37 is without juris- 
diction and convictipn may not 
be invalid but complainant can- 
not be prosecuted for false com- 
plaint 400 

-- S. 54 Because certain* per- 
sons are in a certain place at a 
certain time does not make 
them liable for arresfe 560 

- Ss. 56 and 54 Command cer- 
tificate issued under S. 56 Con- 
stable effecting arrest not notify- 
ing/contents to person arrested 



18 



SUBJECT INDEX, 1926 PATNA 



Criminal PC. 

Arrest is not; illegal if facts 
entitle the constable to arrest 
tinder 8. 54 ^ 424 

8. 59 'In his view' 'means 'in 

his presence* 53 

8. 107 Two opposing parties 

in 'a dispute cannot be proceeded 
against under S. 107 in one 
proceeding 32 

S. 109 (a)-~ 01. (a) is not limi- 
ted to cases where the accused 
has not been arrested, nor is it 
necessary to prove a continuous 
effort at concealment Mere 
effort to run away on the ap- 
proach of police is not sufficient 
Whether a particular case 
falls within 01. (a) depends on 
the facts of that case 569 

S. 133 Only when denial of 

right is a pretence, Magistrate 
can make order absolute HQa 

S. 133 (1) Discharge into river 
of an effluent from a factory is 
covered There must be definite 
scientific and convincing evi- 
dence against the accused 506 

S. 139-A (2) Eoliable evi- 
dence supporting denial of right 
ousts jurisdiction 170& 

S. 144 Absence of notice to 

one of the members does not 
render wholeproceedings without 
jurisdiction 676 

S. 145 Party A party's 

sodflfcaving no possession or title 
is not bound by order against 
his father 103c 

S. 145 Jurisdiction Non- 
joinder or misjoinder of parties 
does not affect jurisdiction 67a 

145 Minor made party to 

order under sub-S. (1) Notice 
not served on him Minor is 
not a necessary party 67c 

S. 145 Order passed after 

looking into evidence and hear- 
ing arguments Order declar- 
ing right of one party to be in 
possession and forbidding others 
froto interfering with the pos- 
sesion is one under S. 145 51 

S. 147 Eight of personal 

easement as well as public 
right of way can be claimed to- 
gether 348a 

S. 147 Seasonable grounds 

that bona fide claim of Bright 



#*. 



Criminal P. C. 

exists are sufficient to pass an 
order under the section. 3486 

S. 147 Specific instances of 

user within three months is not 
necessary General user is 
sufficient 3480 

S. 147 Proceedings against 

gumasta alone are not illegal 196 

S. 162 Important statement 
made at trial was not made at 
the investigation Contradic- 
tion can be proved 362 

(amended 1923), S. 162 

Section excludes completely 
statements made during in- 
vestigation except for limited 
purposes Statements of ac- 
cused, not amounting to confes- 
sion are still admissible 232d 

S. 162 Statement before 
police cannot be used to meet a 
suggestion of defence nor to 
support testimony of the depo- 
nent Infringement of S. 162 
is not necessarily fatal to con- 
viction if decision is based on 
other admissible evidence , 211 

S. 1G2 Statements of wit- 



20 



nesses recorded by investigating 
officer cannot bo used to show 
that the statements do not assist 
the story put forward in the 
first information report 

--- (as amended in 1923), Ss. 164 
and 1 Change by amendment 
is made to allow Presideucy 
Magistrate to record confession 
(Per Adami, J.) 2796 

S. 164 The Code itself contains 
no provisions as to the confes- . 
sion being made in open Court 279c 

- S. 164 Accused asked as to 
his willingness to make volun- 
tary statement, his reply^in the 
affirmative and warning him 
subsequently is sufficient (Per 
Adami, J.) . 

-- S. 164 and Ch. 14 Con- 
strnction Even though the 
police in Calcutta may not con- 
duct their investigations in pre- 
cise accordance with tht pro- 
visions of C^. 14, to construe 
S. 164 which would exclude its 
utilization in Calcutta during 
the pblice investigation at ai^y 
time afterwards before the com- 
mencement of the enquiry or 



SUBJECT INDEX, 1926 PATNA 



19 



ifc in a some- 
and unnatural 



Criminal P. C. 

trial, is to read 

what strained _. 

sense 279/ 

3. 190 and S. 37 and Sch. 4 
Cognizance of offence beyond 
powers specified in Sch. 4 and 
S. 37 is without jurisdiction 
and conviction may not be in- 
valid but complainant cannot 
be prosecuted for false complaint 400 

>S. 192 Complaint under S. 

420 Indian Penal Code Police 
ordered to report Police 
reporting the case to ba false 
and instituting prosecution 
under S.'2ll Complaint by 
complainant praying for judi- 
cial enquiry Case transferred 
to another Magistrate Trans- 
fer is one under S. 192 525 

S. 192 (1) Sub-divisional 

Magistrate transferring a case 
before issue of summons Trans- 
feree Magistrate can issue sum- 
mons and perform all requisites- 
to decide the case If transfer 
is by High Court's derection it 

makes nc difference 358 

S. 195 Magistrate dismissing 

a falso complaint cannot proceed 
against complainant under 
S. 211, Penal Code 368 

S. 202 Issue of process with- 
out recording reasons is not 
correct Cross-examination and 
arguments should not, as a rule, 
be allowed in a case of inquiry 
under S. 202 340 

: 3. 203 Order of dismissal- 
Reasons for dismissal should be 
recorded 57 

S. 210 Prosecution not pro- 
ducing aljl material witnesses- 
Committing Magistrate should 
call them. himself 56 

S. 227 Alteration of charge 

from S. 436 to S. 436 road with 
S. 149 does not take away opera- 
tion of notification requiring 
S. 436 offence triable by jury 
Trial oj altered charge with 
assessors is void 253& 

(amended 1923), S. 234 

Cheating two persons within 
one month Joint trial is ^not 
illegal 3476 

249 S. 249 does not apply 
to warrant erases Order gf 



Criminal P. C. 

release in a warrant case under 
S. 249 is void and proceedings 
cannot be re-opened at the in- 
stance of a private party 292 

S. 250 (3) Total amount of 

compensation is the basis to 
decide appealability 70 

(amended by Act 18 of 1923), ' 

S. 256 Sufficient time must be 
given to the accused to consider 
for further cross-examination of 
prosecution witnesses after 
charge is framed 21 4& 

-S. 256 S. 256 does not apply 

before charge is framed 2146 

3. 256 Magistrate cannot 

insist on the accused to deposit 
costs of witnesses before recall- 
ing for cross-examination 214c 

S. 257 Magistrate deciding 

to call a witness should take 
steps'to produce him but he t 
can dispense with his presence 
if he finds his presence unneces- 
sary 139 

S. 269 Alteration of charge 

from S. 436 to S. 436 read with 
S. 149 does not take away opera- 
tion of notification requiring S. 
436 triable by jury Trial of 
altered charge with assessors is 
void 253 

S. 288" Subject to the pro- 
visions of the Evidence Act" 
means so far as the previo4l 
evidence is evidence under the 
Evidence Act and not so far as 
it is admissible under that Act 
Weight to be given to the pre- 
vious evidence depends on facts 
of each case, but it cannot be 
utlized to support conviction 
unless there is other evidence to 
corroborate it 440& 

S. 307 Two inferences possi- 
ble on evidence Court of refer- 
en ce will not interfere unless 
inference drawn by jury is in-* 
consistent with evidence 5666 

S. 307 Verdict of jury wilt 

not be upset unless it is un- 
supported by evidence 5356 
S. 337 Approver disclosing 
offences other than that he is 
charged with, while making full 
disclosure, should not be pro- 
ceeded Against for the further 
disclosed offences 279<* 



20 



SUBJECT INDEX, 1926 PATNA 



Criminal P. C. 

c S. 340 No authority in 

writing is necessary for an 
advocate or vakil in criminal 
cases 296a 

S. 342 Technical failure to 

comply is not fatal unless pre- 
judice is caused 393i 

S. 342 Provisions are man- 
datory Non-observance vitiates 
trial 29(1) 

S. 360 Deposition not read 

over to witness but read by 
witness himself Deposition is 
legal evidence 2320 

S. 403 Scope is wide 

Jurisdiction does not refer 
merely to character or status of 
Court but refers also to want of 
jurisdiction on other grounds 
such as want of sanction under 
S. 195 302a 

S. 403 and S, 249 S. 249 does 

not apply to warrant cases 
Order of release in a warrant 
case under S. 249 is void and 
proceedings cannot be re-opened 
at the instance of a private 
party 292 

Ss. 437 and 202 Allowing 

cross-examination in an enquiry 
under S. 202 is a mere irregu- 
larity and further inquiry should 
not be directed 34i 

S. 439 Question of proof of 

ralice is one of law (Kulwant 
Sahay, J.) 499d 

S. 439 Magistrate convicting 

accused for lesser offence within 
his jurisdiction Facts also con- 
stituting grave offence not with- 
in his jurisdiction Proceedings 
are not void High Court will 
not interfere unless prejudice is 
caused 393a 

S. 439 High Court will in- 
terfere only in exceptional cases 
e. g. f where there is denial of 
fair trial In cognizable cases, 
private prosecutor has no locus 
Btandi at all (Mullick, J., Mac- 
pherson, J. contra) 176 

S. 439 Accused convicted of 
one offence though facts found 
would constitute more serious 
offence High Court would not , 
interfere unless sentence is in- 
adequate or accused is deprived 
of right of appeal 36a 



81* 



Criminal P. C. 

S. 444 Oh. 33 does not apply 

fco complaint by public servant 

on orders of Government 566c* 

S. 444 Powers of High Court ' 

on reference are not co-extensive 
with those under S. 449 566^ 

< g. 475 Making complaint is 

discretionary High Court 
should interfere only in excep- 
tional cases Sib 

- S. 476 Court generally takes 

action on application by parties Sic 

S. 476 Question as to forged 

nature of document is to be de- 
cided in prosecutions following 
complaint and not before making 
one Sid 

' S. 476 Criminal offence sus- 
pected Facts forming the of- 
fence shoujd be determined in 
the proceedings 25& 

S. 476-B First Court refusing 

to make complaint Appellate 
Court allowing appeal and itself 
making a complaint Appeal lies 
to High Court 

S. 476B Party prejudicially 

affected has a right of appeal .250 

S. 526 Crown case conducted 

by Court Inspector Complain^ 
ant appointing a pleader, who 
is a near relation of Magistrate, 
to watch the case is no ground 
for transfer 464 

S. 529 (e) Cognizance of of- 
fence beyond powers specified in 
Sch. IV and S. 37 is without 
jurisdiction and conviction may 
not be invalid, but complainant 
may not be prosecuted for 
false complaint 

Ss. 530 and 439 Magistrate 

convicting accused for lesser of- 
fence within his jurisdiction 
Facts also constituting grave of- 
fence not within his jurisdiction 
Proceedings are not void 
High Court will not interfere 
unless prejudice is caused 393a 

S. 537 Cheating Omission 

to give exact date Month given 

Irregularity is curablo 347a 

S. 537 Allowing cross-exami- 
nation in an enquiry under 
S. 202 is a mere irregularity 346 

S. 539 Affidavit before Magis- 
trate having no seisin over the 
case is not valid 2140 



400 



SUBJECT INDEX, 1926 PATNA 



21 



Criminal P. C. 

Sch. IV Cognizance of offence 
beyond powers specified in 
Sch. IV and S. 37 is without; 
jurisdiction and conviction may 
not be invalid but complainant 
cannot be prosecuted for false 
complaint 400 

Criminal Trial 

Written statement by accused 

is not legal 566& 

It is for the Crown and not 
for the High Court to consider 
whether proceedings should be 
dropped on the ground of harass- 
ment to accused 3025 
-Sessions trial Defence having 



a counter- case should give evi- 
dence and should not rely on the 
discrepancies in prosecution evi- 
dence 5& 

Prosecution case not proved 

Accused should be acquitted 50 

Custom 

*Proof must be given apart from 
estate in dispute 61a 

D 
Damages 

Breach of contract Railway 

Company entrusted with goods 
to be carried Route not fixed 
No delay in delivery Railway 
is free to carry goods by any 
route 

-Suit for Cause of action based 

on breach of contract Damages 
based on delay cannot be 



claimed 
Decree 

-Setting 



2736 



aside- 



4870 



Fraud Minor 

is equally bound by a decree as 
a major Decree against minor 
properly* represented Fraud or 
collusion is the only ground for 
setting aside 5280 

Deed 

Construction Lease Dak 

fard is not a lease 

'Construction Principles 

Each document and the cir- 
cumstaJhces under which it came 
into Qjdstence mus^be considered 
separately, and the construction 
of one document is not generally 
of jnuch assistance in conttruo- 
ting another which may differ 
materially in its terms and in" 
the attendant circumstances 4876 



Deed 

-Construction Intention may 

be elucidated by conduct 3400 

Construction Conveyance of 

land Difference between boun- 
daries and area given Land 
actually comprised within the 
boundaries should be treated as 
conveyed 257 

Defamation 

See PENAL CODE, S. 499 

Dower 

See MAHOMEDAN LAW 

DOWER 



Easement Act (5 of 1882) 

S. 13 Right of way Ser- 

vient owner pleading permissive 
user must allege and prove it 460 

S. 17 Profits a prendre do not 

include right to water 1876 

Equity 

He who enables third person 

to occasion loss must suffer it 3536 

Escheat 

** j n fc ne discretion of Govern- 
ment alone escheated property 
can be granted back 321/ 

Evidence Act (1 of 1872) 

S. 8 Evidence of raped girl - 

Voluntary statements made im- 
mediately after occurrence are 
relevant 580 

S. 2 IThe Code of Criminal 

Procedure contains no provisions 
as to confession being made in 
open Court (Per Adami, J.) 279o 

S. 24 The hope of being made 

an approver does not show that 
the confession is not voluntary 

2790 

S. 30 Confession to be used 

against co-accused must be con- 
fession of guiJt of maker 4406 

S. 32 Admission by a Hindu 

widow regarding the existence 
of a loan cannot be split into 
two but must be considered as a 
whole for ascertaining the pur- 
pose of loan * 255 

3. 33 Evidence not taken ac- 
cording to Ch. 25, Criminal 
P. C., is not admissible 58a 

S. 35 Crop cutting report of 
Dy. Collector under B. T. Act, 
S. 40, is a public document and 
is adnyissible to prove quantity 
of crops cut 4366 



22 

Evidence Act. 



SUBJECT INDEX, 1926 PATNA. 



S. 35 Jamabandi prepared 
by landlord is admissible to 
show basis of assessment 197c 

S. 36 Thakbast map and 

revenue survey map The latter 
is more accurate and should be 
relied upon to determine boun- 
daries 385a 



S. 40 A judgment is not evi- 
dence against persons not 
parties to it It is admissible 
only in so far as it shows asser- 
tion of title made therein 5776 

S. 45 Evidence of Finger- 
print Expert as to age of thumb- 
impression opposed to date on 
the document Court should 
bo careful to accept expert 
opinion 575a 

S. 54 Evidence of bad 

character, to prove motive for 
the crime or otherwise relevant, 
is not excluded 232& 

S. 58 Admission of execution 

of a document Attestation 
need not beproved Executant 
a pardanashin lady Consid- 
eration must l)e proved 295 

S. 66, Proviso Redemption 
suit Mortgagee denying exis- 
tence of mortgage deed Notice 
is not necessary 512& 

-Ss. 74 and 35 Crop-cutting 

report of Deputy Collector 
under S. 40, Bengal Tenancy 
Act, is public document and ad- 
missible to prove quantity of 
crops cut 4366 

S. 76 Plaint is not a public 

document 180a 



S. 78 Copies of registers in 

Native State are not admissible 

29(2)c 

S. 92 Evidence to show non- 

existonce of an agreement is 
admissible 156a 

S. 101 Will Ordinarily 

parties propounding must prove 
due execution 269 

S. 102 Zamindar and tenant 

Record of rights recording 
tenants as owners of non-resum- 
able tenure Burden is on 
zamindar to prove that the 
tenure is resumable ( 369(2 

S, 133 Approver should be 



Evidence Act. 

corroborated also in material 
points as to the part played by 
his accomplices 

- S. 154 Witnesses, being 
neighbours or supporting defence 
or not supporting prosecution is 
no ground for discrediting them 
as hostile There must be 
something in their depositions 
contradictory 3166 

- S. 157 Evidence of raped 
girl excluded Evidence of her 
relatives cannot be used for 
corroboration 58fr 

Execution 

* - Decree for dower passed 

Executing Court cannot direct 
in execution payment of decree 
proportionate to shares of differ- 
ent heirs 411 

* - Declaratory decree Decree 

declaring a charge on certain 
property of defendant Charge 
can be enforced in execution 
Separate suit is not necessary 31 
Execution of Decree 

- Mortgage decree Executing 
Court cannot entertain objection 
that property ordered to be sold 
in decree is not saleable Such 
objection may be entertained in 

the case of money decree 2026 

* - Limitation Objection to 

execution raised but dismissed 
Appeal against the order by 
objector does not extend limi- 



tation 
Ex parte Decree 

- Setting aside Sec CIVIL P.O., , 
0. 9, R. 13. 

G 
General Police Act (5 of 1861) 

* - S. 30 Section gives* police 

power to control procession, but 
not to forbid 1730. 

- S. 30 Issue of licenses 
Signing and giving for delivery 

is sufficient 1736 

* - S. 30 Once license is applied 

for, the applicant may take out 
his procession 173c 

Government - of India * Act 
(1915) 

* - S. a07 Refusal to add a 

party as plaintff S. 115 does 
toot apply If fair trial -is 
denied S. 107 will apply . 207& 



SUBJECT INDEX, 1926 PATNA 



23 



Govt of India Act 

S. 107 Bx-parte decree 

Application for restoration 
Application decided according 
to law High Court will not 
interfere 37 

8. 107 Sub-Deputy Collector 

refusing application to pro- 
secute Collector on appeal set- 
ting aside the order and making 
a complaint exercises judicial 
powers and revision lies 25a 

K1919) 

* (amended 1925) In 01. (3) to 

S. 72 D the words "payments 
or emoluments payable to or on 
account of a person in respect 
of his office " include the tour 
expenses and the travelling 
allowances of the Governor and 
the Members of his Council and 
the Inspector-General of Police 
and therefore these expenses are 
non-votable items 305a 

Grant 

Brahmottar interest created 

by Ghatwal is not burdened 
with service It is liable to be 
sold in execution of a decree 444& 

H 
Hindu Law 

** Adoption Karfca putra is not 

in better position than dattaka 
putra Karta putra does not 
inherit any person except the 
adoptive father Karta putra 
does not by mere adoption get 
a right to succeed to the es- 
tate of adoptive father Natural- 
born son excludes altogether 
the karta putra 90 

Alienation by widow Defen- 
ding tifrle to property no longer 
hers is no legal necessity 490 

Alienation by Mahant Limi- 
tation 'for setting aside such 
alienation by succeeding Mahant 
does not begin afresh from the 
date of his succession, but dates 
back to the death of the vendor 
Mahaift 2396 

Alienation by m manager for 

personal benefit is not binding 
though the manager shares the 
benefit with the family tolun- 
tarily or by agreement 17 

-Damdupat Rule does not 
apply to muffasil 94a 



Hindu Law 

* Debts Pious obligation of 

son does not extend to time- 
barred debts of father 4270 

*- Debts Son's liability- 
Father undertaking to pay 
money misappropriated by an- 
other Money misappropriated 
after having taken lawfully 
Son is liable 14 

* Family settlement Property 

not partitionable without in- 
convenience One party should 
take compensation from the 
other for his share Legal neces- 
sity need not be proved 864a 

Family settlement is method 

of enjoying ancestral property 
by parties Binding nature 
Doctrine of legal benefit applies 
(Per Foster, J.) 3646 

Impartible estate Ghatwali 

Produce of impartible estate 
is not necessarily accretion- 
No distinction exists between 
realized and unrealized rents 
Unrealized rents are liable to 
attachment in execution 518 

* Joint family Father ad- 
judged insolveut Son's shares 
are liable to be sold by Official 
Receiver to pay off debts not in- 
curred for immoral purposes 438 

Joint famil> Alienation by 

manager If r-ale for considera- 
tion is not much over the I6g3il 
necessity and the transaction Is 
not an improper one sale 
should not be set aside 4276 

Marriage Re-marriage during 

lifetime of first husband Cus- 
tom as to, must be proved 346 

* Mithila School Widow 

Grant of immovable property by 
karta of joint family for main- 
tenance does not constitute her 
stridhan, nor does it create a 
widow's estate After widow's 
death properties revert to donor 481 

Partition Ascertainment of 

shares that would fall to differ- 
ent members in the event of 
partition does not amount to 
partition Intention ^o divide 
is necessary 645 a 

* Partition Mother takes equal 

to sons, but only half as much 
if sheiias got income producing 
stridhan 537 



SUBJECT INDEX, 1926 PATNA 



Hindu Law 

Keligious office Mahants 

are only managers of the in- 
stitution and no property is 
vested in them 239<x 

Beversioner has no interest 

in the estate Compromise with 
reversioner does not hind rever- 
sionary hody and is wholly void 16 

Successions Daughters among- 
st themselves take by survivor- 
ship Agreement to relinquish 
survivorship right is valid 392 

Succession, effect of Heirs, 

whether male or female, are 
bound to maintain those whom 
last holder was bound to main- 
tain Mainteinanco includes 
marriage expenses la 

-Widow Sonless widow suc- 



ceeding her husband takes ab- 
solute estate, but her power of 
alienation is limited like that 
of a coparcener Small gifts of 
immovables for spiritual bene- 
fit of her husband are not in- 
valid Gift of immovables to 
her daughter or son-in-law at 
fhe time of marriage will be 
upheld to a reasonable extent 
Gifts may be promised at 
marriage and given afterwards 



Income-tax Act (11 of 1922) 

< -- gj f 12 Taxes payable under 
Act 3 of 1914 and Act 4 of 1920 
are not to be deducted from 
royalty in determining assess- 
able income 109 

H3. 14 (1) Section does not 
apply when a member receives 
income from property not taxed 
as joint property 256 

Inherent Powers 

- See CIVIL P. 0., S. 151 
Injunction 

-- See CIVIL P. C., 0. 39 

- See SPECIFIC RELIEF ACT, 
S. 54 

Interpretation of Statutes 

- Eepealing Act Vested rights 
under old Act are not taken 
away unlees expressly provided 
New procedure applies to fur- 
ther action 5612) 

General and special enact- 
ments Extent to which special 
enactment overrides, general 



Interpretation of Statutes 

enactments depends. on language 

of special Act 23 2c 

Judge 

Definition of See I.P.O., S. 19 

Jurisdiction 

Act of State Court cannot 

question 3056 

Land Acquisition Act (1 of 
1894) 

S. 11 (3) and 30 Occupancy 

lands acquired Lands not trans- 
ferable without landlord's con- 
sent Landlord is entitled to 
a share of the compensation 
money 16 

Landlord and Tenant 
* Zerpeshgidar lessee from land- 
lord inducting tenant on raiyati 
or bakasht lands Tenant acquir- 
ing status of occupancy Land- 
lord cannot eject him 605& 

Rent Tenant dispossessed of 

a portion Bight to claim posses- 
sion barred by lapse of time 
Tenant can still withhold entii'e 
rent 513 

* Tenant's rights English 

doctrine that tenant, unless put 
in possession cannot sue for 
infringement of rights based on 
actual possession, applies to 
Indian leases for a term of 
years In India lessee or sub- 
lessee can sue for damages for 
being kept out of possession 508 

Bent decree Some defen- 
dants dead at the date of 
decree Whole decree is not 
nullity Decree can be executed 
against living defendants only as 
money decree 504a 

Tenant cannot deny landlord's 

title at the time of demise 
Tenant can show that subse- 
quent to the demise landlord's 
title has expired 498 

Belationship is not estab- 
lished by marfatdari receipts 4650 

Non-transferable occupancy 

holding Landlord may suf for 
rent against the original tenant 
even after the transfer 423 

-Molfcirrari grants are life 



grants Grantee's heirs continu- 
ing in possession adversely to 
landiord after grantee's deafh 



SUBJECT INDBX* 1926 PATNA 



Landlord and Tenant 

Landlord's suit for actual posses- 
sion is not maintainable 241 

Abandonment by tenant 

Mineral rights Mere non-user 
is not enough Landlord treat- 
ing lease as at an end is not 
enough unless adverse possession 
for statutory period is proved 1300 

Dispossession of tenant by 

landlord Mere refusal to recog- 
nize lease is not enough 130/1 

Mines and minerals Bight 

to, vests in landlord unless ex- 
pressly divested 103a 

Bight to trees Tenant is to 

cut trees and landlord is to 



appropriate wood 



686 



-Expression "cultivate and get 
cultivated" does not necessarily 
indicate a tenure-holder rather 
than a raiyat 

Land Tenure 

-Ghatwali Produce of impar- 



tible estate is not necessarily 
accretion No distinction exists 
between realized and unrealized 
rents Unrealized rents are 
liable to attachment in execu- 
tion 518 

Jagir Bamgarh Baj Main- 
tenance grants and jagirs are 
resumable on failure of lineal 
male descendants Jagodih 
tenure is such jagir tenure under 
Bamgarh and is likewise resum- 
able 369c 

Ghatwali tenure Ghatwal 

can be a mourashi mokarrari- 
dar Distinction between ghat- 
wali within and outside Begula- 
tion pointed out 1036 

Ghatwali tenure Occupancy 

rights cannot be acquired in 
ghatwali lands 64c 

Lease - 

Permanent lease Lessee 

never having got possession can 
yet sue for ejectment or damages 
and injunction , 130c 

Construction Contract to 

holct premises for 11 years and 
after that to holcf at thrice the 
rent or to take fresh settlement 
i? enforceable < 122a 

-"Construction Ijara deed is a 

mortgage and haq ajiri is not 
rent Interest on hag ajiri can- 



Lease 

not be claimed unless there is a 
stipulation in the deed lid 

Zar-i-peshgi Damage to ijar& 

property is to the corpus and 
compensation for excavation in 
such property cannot be claimed 
by ijaradar from third person but 
can be claimed from the owner lie 

Legal Practitioner 

Advocate can be verbally ap- 
pointed and can present an ap- 
plication on behalf of clients 
without vakalatnama 73a 

Pleader authorised to compro- 
mise Compromise is valid un- 
less fraud or collusion is proved 730 

Limitation Act (9 of 1908) 

S. 5 Petition out of time 

No reason for delay shown on 
the face of it Petition is not 
entertainable 736 

S. 9 Limitation begun in 

lifetime of full owner is not 
suspended on his death 1926 

S. 10 Duty of receiving pro- 
perty and holding it for another 
can only be discharged by hand- 
ing it over to the person entitled 
and noli by appealing to the 
lapse of time 321a 
-S. 10 Suit to recover remu- 
neration as dwaris of temple is 
not covered by S. 10 Art. 100 
applies, but not Ari. 131 nor 
Art. W'2 ^ 

S. 14 "Civil proceeding" does 

not include application under 
Land Begistration Act, S. 28, 
S. 29 and S. 42 Land Begistra- 
tion Deputy Collector is not 
"Court" 

S. 18 Mere carelessness 



205 



or 



negligence does not substantiate 

a finding of fraud' 3976 

S. 22 (1) and (2) Defendant 

made co-plaintiff after limita- 
tion Suit does not become 
barred , 28a 

Art. 14 Partitition under 

Estates Partition Act (1897) 
Land not belonging to the estate 
under partition allocated 
Claimant of the land can bring 
a suit for its recovery within 
12 years Art. 14 does not 
apply 4216 

"- Arfcs. 95 and 12 Suit to set 

aside sale under Chota Nagpur 



26 



SUBJECT INDEX, 1926 PATNA 



Limitation Act 

Tenancy Act on the ground of 
fraud is governed by Art. 95 
S. 231, Ohota Nagpur Tenancy 
Act, does not apply 401a 

Arts. 100, 102 and 131 Suit 

to recover remuneration as 
dwaris of temple Art. 100 ap- 
plies and not Arts. 131 or 102 205 

Art. 132,Expl Malikana 

A suit to recover malikana, 
though coupled with an ancil- 
lary relief of declaration of right 
to receive malikana, is governed 
by Art. 132 340c 

Art. 132 Expl. Malikana 

The explanation to Art. 132 does 
not merely refer to malikana as 
contemplated by the Bengal Be- 
gulations, but it also covers 
malikana claimable by a sardar 
ghatwal under a settlement bet- 
ween the Ghatwals and zarain- 
dars 340d 

Arts. 132 and 148 Suit for 

redemption of prior mortgage by 
second mortgagee is not gov- 
erned by Art, 132 but by Art. 
148 3376 

Arts. 144 and 14 Partition 

under Bengal Est. Partition 
Act Land not belonging to the 
estate under partition alloca- 
ted Claimant of the land can 
bring a suit for it in recovery 
with in 12 years Art. 14 
does not apply 4216 

Arts. 148 and 132 Suit for 

redemption of prior mortgage 
by second mortgagee is not 
governed by Art. 132 but by 
Art. 148 3376 

Art. 166 Application to set 

aside execution sale on the 
ground of want of notice under 
O. 21, B. 22, Civil P. C., is 
governed by the three years' 
rule of limitation under Art. 
181 397c 

J Arts. 181 and 166 Scope- 
Application to set aside execu- 
tion sale on the ground of want 
of notice under O. 21, B, 22, 
Civil P. C. is governed by three 
years' rule of limitation under 
Art. 181 397c 

Art. 181 Execution stayed 

by an injunction Eight tc*exe- 
cute revives on injunction com- 



Limitation Act 

ing to an end Decree-holder 
must apply for revival within 
three years from accrual of 
right 626- 

Art. 182 Application though 

in accordance with law may be 
defective for some other reason 



Art. 182 Bules 1114 of 
O. 21 complied with Applica- 
tion is in accordance with law 



1606 



-Art. 182 Issue of notice 



under 0. 21, E. 22, is step-in- 
aid though the application is 
not in accordance with law 160c 

Art. 182 Setting aside of sale 

under O. 21, B. 90, Civil 
P. C. Second application for 
execution after the setting aside 
of sale is in continuation of the 
first one in which sale was 
held Decree-holder's right 
revives on the date of setting 
aside the sale 

Art. 182 -Execution applica- 
tion in continuation of previous 
application Scope of both ap- 
plications must be the same 129& 

Art 182 Execution stayed by 

injunction Bight to execute 
revives on injunction coming 
to an end Decree-holder must 
apply for revival within three 
years from accrual of right 

Sch. The more general 

article must be governed by 
that which is more specific 
M 

Mahomedan Law 

: Dowor Decree for dower 

debt does not create a charge 
on the husband's property*in the 
hands of his heirs 4040 

Dower Suit by widow to set 

aside alienation by husband of 
his property made with a view 
to defeat plaintiff's claim for 
dower is a suit as contemplated 
by S. 53, T. P. Act 404& 

:; Escheat Property of*heir- 

less Shia takep by acts of apve- 
reignty Suit does not lie to 
recover it But if taken under 
legal tftle Courts have jurisdicr 
tion Property taken under a 
decree is not taken by act of 
sovereignty 321ef 



SUBJECT INDEX, 1926 PATNA 



Mahomedan Law 

Pre-emption Owner of plot 

can pre-empt though not resid- 
ing on the plot 542a 

Pre-emption " Hait " in- 
cludes small enclosure or plot 
of homestead land 5426 

Shias- -Suit for declaration of 

trust in favour of poor All 
Shias are interested No dis- 
tinction as to actual poor and 
others can be made 321c 

Mir>or 

Decree Setting aside 

Fraud Minor is equally bound 
by a decree as a major Decree 
against minor properly repre- 
sented Fraud or collusion is 
the only ground for setting 
aside^ 528# 

Mischief 

-See PENAL CODE, S. 425 



Mortgage 

Mortgagee 



purchasing mort- 



gaged property at execution sale 
can use mortgage as shield 
against subsequent incum- 
brancera 4786 

Mortgagor selling equity of 
redemption Purchaser promis- 
ing to pay the mortgage 
mone> Mortgagee not a party 
to the agreement Purchaser is 
not personally liable to mort- 
gagee for mortgage money 474 

Motor Vehicles Act (8 of 
1914) 

- Ss. 8 and 16 Bight to de- 
mand driver's license for inspec- 
tion is not restricted to a public 
place only 446a 

- S. 16Patna Motor Vehi- 
cles Eules R. 12 Person res- 
ponsible for fixing board is the 
owner and not the user of the 
car 4466 

- S. 16 Patna Motor Vehicles 
Rules, R. 13 Time at which 
car was found driven without 
proper lights must be accu- 
rately proved 446c 



Occupancy Holding 

- Acquisition 'of right by 
custom Mere proof of long 
possession and planting 4rees is 
insufficient 

- -Acquisition under Land 
Acquisition Act-, Landlord is 



16- 



529 



295 



184 



Occupancy Holding 

entitled to a share of compensa- 
tion money 

P 
Pardanashin Lady 

- Execution of document 
Want of independent advice 
will not make document invalid 
unless such advice would have 
affected the execution 5826 

-- Liability under a deed exe- 
cuted by her Execution by and 
explanation of document to her 
must be proved When she is 
already aware of its nature, deed 
need not be explained to her 

-- Admission of execution of v a 
document Attestation need 
not be proved Executant a 
pardanashin lady Considera- 
tion must be proved 

Part performance 

- Plaintiff permitting his agent 
to grant a lease and induct 
lessee into possession cannot be 
allowed to succeed merely on a 
plea that the document was not 
registered 

Patna High Court Rules 
-- Part II, Chap III, Rr. 12 and 
8 Affidavit on an interlocu- 
tary application Declarant 
must state the source of his 
belief 

-- Ch. 17, K. 5A Kule does not 
prescribe a written authority 
for an advocate in criminal 
cases 2966' 

- R.oO Construction Bule SO 
must be construed as subject to 

Kr. 1 and 4 1806- 

Penal Code (45 of 1860) 

- S. 19 A person, not desig- 
nated as a Judge, is a Judge 
only when exercising jurisdic 
tion in a case 

- S, 34 All accused abetting 
or aiding each other by presence 
or other acts in the commission 

of the act are equally liable 182- 
-- S. 71 Separate sentences 
under both Ss. 380 and 457 are 
bad 367 

- S. 97 Bight of private 
defence of property Onus is on 
accused to prove their owner- 
ship of property 433# 



S. t 100 Eight 

defence arises only 



of private 
when there 



28 



SUBJECT INDEX, 1926 PATNA 



Penal Code 

is no recourse for safety 
Accused must not be the creator 
of necessity for self-defence 
No right of self-defence exists 
when hoth parties are deter- 
mined to vindicate their rights 
by show of criminal force 4336 

S. 147 Because certain 

persons are in a certain place, 



560 



at a certain time, does not make 
them liable for arrest Resis- 
tance to arrest is not rioting 

S. 149 Guilt of principal is 

gnilt of participator and not a 
separate offence 2536 

^S. 161 Statement that 
Government servant worked 
for money in favour of a can- 
didate at an election is not 
charging him with bribery as 
such work is not in discharge of 
his official duty It is on the 
contrary prohibited 4996 

-S. 186 Attachment under 



237 



517 



168 



invalid writ Attached property 
claimed by owner judgment- 
debtor from attaching peon's 
possession Peon delivering pos- 
session of property No hurt 
caused to peon Judgment- 
debtor is not guilty under 
8.186 

S. 193 Witness withdrawing 

his previous statement in same 
deposition as beinq false No 
offonco is committed 

S. 193 Giving false answers 

to questions which should not 
have been asked but were 
asked Perjury is committed 
but sentence should ho light 

S. 211 Magistrates dismissing 

a false complaint cannot pro- 
ceed against complainant 
under S. 211 ' 368 

S. 361 Offence is complete 
as soon as minor is actually 
taken from the lawful guardian- 
ship 493a 

S. 361 Whether kidnapping 

from lawful guardianship is 
complete is a question of fact 4936 

S. 379 Servant knowing his 

master had no right to com- 
plainant's goods and assisting in 
removing commits theft 366 

Ss. 380 and 457 Separate 

sentences under both . are bad 367 



Penal Code 

S. 409 Post office clerk deli- 
vering V. P. P. to party and re- 
ceiving money Entry not made 
in register nor money credited 
Offence is committed 299 

Ss. 411 and 414 Accused 

found seated around the stolen 
property disputing as to its dis- 
tribution can be convicted 316& 

S. 415 Merely taking thumb- 
impression on a blank piece of 



paper is not sufficient 
S. 425 No mischief is com- 
mitted by damage done to one's 



267 



244 



own property 

Ss. 457 and 380 Separate 

sentences under both are bad 367 

S. 464 Antedating document 

is not necessarily forgery 5350 

S. 494 Kemarriage during 

lifetime of first husband 
Custom as to, must be proved 346 

S. 499 Statements made by 

advocate during professional 
work are privileged Privilege . 
is qualified Prosecution has to 
prove express motive 

S. 499 Statement that Govt. 

servant worked for money in 
favour of a candidate at an 
election is not charging him 
with bribery as such work is 
not in discharge of his official 
duty : It is on the contrary 
prohibited 4996 

S. 499 Advocate Liability 

English Common Law princi- 
ples do not apply in India (Kul- 
want Sahay, J.) 4990 

S. 499 Question of proof of 

malice is one of laid. (Kulwant 
Sahay, /.) 499rf 

S. 499 Defamatory state- 
ment in a plaint is not abso- 
lutely^ privileged ' 425 

Possession 

Underground rights Owner 

not working the mines may be 
still in possession 1304 

Practice 

Witness See WITNESS 

Court-fees Patna High 

Court Stamps impressed with 
M for use in the High Court 
only," Are not invalidated for, 
use in the subordinate Courts 408 

Inconsistent pleas Plaintiff 

resisting a rsrfanama (settle- 



SUBJECT INDEX, 1926 PATNA 



3406 



Practice 

ment) in a previous suit, but 

failing can claim under the 

rafanama in a subsequent suit 

r 

Belief It is meaningless to 

have a power and to pass an 
order without having the power 
to enforce it 305<2 

Duty of Court Court will 

not initiate proceedings 62& 

High Court Stay of execu- 
tion for costs is not ordered 
unless it is clear that the suc- 
cessful party will have no 
chance of recovering the costs 546 

Probate and Administration 
Act (5 of 1881) 

S. 14 A grant of adminis- 
tration does not decide* any ques- 
tion of title. It merely decides 
the right to administer 356e 

S. 17 Applicant challenging 

validity of the Will Adminis- 
tration cannot be granted 3566 

-S. 21 Will Court's duty- 
Will must be established al- 
' though administration is com- 
plete 356c 

S. 86 Appeal High Court 

will not interfere with the dis- 
cretion of the lower Court 356cZ 

S. 90 Conveyance without 

sanction of Court is voidable 
only by person interested in 
property 1306 

Pro-note 

Loan transaction and pro-note 

contemporaneous Suit based 
on pro-note, which cannot be 
proved fails 432 

Provincial Insolvency Act 
(5 of 1920) 

S. Q (1) (d) Hindu joint fami- 
ly Father adjudged insolvent 
Sons 1 shares are liable to bo 
sold by Official Keceiver to pay- 
off debts not incurred for im- 



moral purpose 



438 



3s. 56 (3), (4) & (5) S. 56 (3) 

implies that k>urt must have 
appointed Receiver in insolven- 
cy and that the power to recover 
property is reserved *to the 
Court Enquiry by the Cpurt 
must be a judicial inquiry 291 



Provincial Small Cause 
Courts Act (9 of 1887) 

S. 25 Failure to forthwith 

apply in revision on interlocu 
tory order does nob bar the 
right to apply when the case is 
over 5756 

Q 

Question of Fact 

See CIVIL P. C., S. 100 

Question of Law 

See CIVIL P. 0., S. 100 

R 
Railways Act (9 of 1890) 

S. 72 Kailway Company en- 
trusted with goods to bo car- 
ried Koute not fixed No 
delay in delivery Railway is 
free to carry goods by any route 



S. 72 Risk Note B Admis- 
sion of loss by Railway Rail- 
way need not prove the fact of 
loss Consignor must still prove 
loss by negligence 190 

S. 72 Risk Note B Consign- 
or pleading loss to himself 
Railway need not plead loss to 
them but may simply plead the 
risk note 165& 

S. 72 Risk Note B Wilful 

neglect means deliberately doing 
or abstaining from doing an act 
which the party is bound to do 

1656 

S. 72 Risk Note B is a spe- 
cial contract complete in itself 
Company admitting loss need 
not prove it 148& 
-S. 72 Risk Note B signed 



Consignor cannot go behind it 
and sue under ordinary law 148 

S. 72 Risk Note A Loss 

due to unsound packing is 
covered by the note Admission 
of loss discharges burden on 
company's part 137 

S. 72 (2) (a) Person sending 

and person delivering goods to 
Railway need not be same 336 

S. 75 No Indian autliority 

exists for the proposition that if 
goods are abstracted by com- 
pany's servants S. 75 does not 
apply English rulings are 'in- 
applicable ^ 3846 

S. 76 'Deterioration' must 

bet taken in ordinary sense 



30 



SUBJECT INDEX, 1926 PATNA 



Railways Act 

abstraction of goods from parcel 

is deterioration 384a 

S. 77 Six months run from 

date of delivery of goods for 
carriage 413a 

Ss. 77 and 140 Notice ad- 
dressed to Subordinate Officer 
and forwarded by him to Agent 
within six months is sufficient 

4196 

S. 77 Delegation of power 

by Agent to receive notice may 
bo inforred from rules and con- 
duct of railway Authorizing 
to settle claim is not delegating 
power to receive notice 413c 

S. 80 A Railway accepting 

goods and sending to If Railway 
Invoice not sent by A to B 
for over six months Goods not 
identified and henco not deliver- 
ed Both railways are respon- 
sible for deterioration 395 

Registration Act (16 of 1908) 

S. 2 Mango tree gifted In- 
tention of the gift was that 
donee should enjoy fruit Tree 
is immovable property 125 

*S. 28 Including a small pro- 
perty in the deed in a particular 
district to effect registration in 
that district Property really 
existing and no fraud committed 
Property ically intended to 
be transferred Registration is 
valid although transforrer does 
not take possession 582a 

S. 49-A plaintiff permitting 

his agent to grant a lease and 
induct lessee into possession 
cannot bo allowed to succeed 
merely on a plea that the docu- 
ment was not registered 184 

S. 49 Unregistered deed is 

admissible in a suit for specific 
performance 896 

S. 77 S. 77 does not affect 

equitable jurisdiction of Courts 
to decree specific performance 
of contracts to sell 89a 

Res-judicata 

=-S* CIVIL P.O., S. 11. 

Return of Plaint 

See CIVIL P. C., O. 7, R. 10 

Review 

See CIVIL P. C., 0. 47 

Revision (Civil) 

See CIVIL P. C., S. 115 



Revision (Criminal) 

, See CRIMINAL P. C., S. 439 

Right of Private Defence 

See PENAL CODE, Ss. 97 AND 

WO 
Riparian Rights 

* Upper owner cannot appro- 
priate whole water of natural 
stream for irrigation Such right 
can bo acquired by prescription 187a 

Risk Note 

See RAILWAYS ACT, S. 72 

S 

Sanction 

See CRIMINAL P. C., S. 476 

Set-off 

See CIVIL P. C., O. 8, R. 6 

Sonthal Parganas Settlement 
Regulation (3 of 1872) 

S. /) (2) Execution proceed- 
ings are "suit" within S. 5 
Ponding execution cases should 
not be dismissed but should be 
transferred to officer appointed 
under the regulation 33 

(amended in 1908), S. 6- 

Regulation does not restrict 
Court's power under S. 34, Civil ' 
P. C. 359a 

S. G Whether contracts of 

novation are nullified is un- 
decided 3596 

S. 27 (1) and (2) "Any Court" 

in sub-S. (2) does not include a 
Court executing decree under 
Civil P, C. 202a 

(5 of 1893) 

S. 4 (I) (ii)-~"Hi 8 h Court/' 

for purposes of revision against 
the acquittal from proceedings 
from Sonthal Pargannas is 
Commissioner of Bhagalpur 449 

Specific Performance 

Relief of specific performance 

is discretionary with Court, but 
Court has no discretion to refuse 
relief based on completed 
contract 539c 

Specific Relief Act (1 of 1877) 

* S. 12 S. 77, Registration Act, 

does not affect equitable juris- 
diction of Courts to de&'ee 
specific performance of contracts 
to sell S9a 

3 45 \Vrit of mandamus 

cannot *be issued by Patna, 
Allahabad and Lahore High 
Courts 305 



SUBJECT JNDEX, 1926 PATNA 



31 



Specific Relief Act 

S. 54 Plaintiff not in posses- 
sion can still sue for injunction 
in a proper case 130/ 
Stamp Act (2 of 1899) 
: S. 2 (15) Partition suit De- 
fendant need not pay Court-fee 1546 
Statements to Police 

See CRIMINAL P. 0.^ S. 162 

Step-in-aid of Execution 

See LIMITATION ACT, Art. 182 

Subrogation 

See T. P. ACT, S. 74 

Succession Act (10 of 1865) 

S. 179 'All the property of 

the deceased' in S. 179 includes 
property held as trustee 130# 

(39 of 1925) 

S. 124 Rule in S. 121 is rule 

of law and not construction 
Devise to A and in case A dies 
B to become heir A surviving 
the testator B cannot take 
under the Will 356ft 

Suits Valuation Act (5 of 1887) 

* S. 11 If proper valuation 

would have brought the appeal 
to High Court directly as first 
appeal, and under- valuation 
brought it to High Court on 
second appeal, such undervalua- 
tion affects the merits of the 
appeal 351 

T 
Tort 



Secretary of State Donee of 

the power exercising it unreaso- 
nably is guilty of tort. (Per 
Mullick, Aq. C. /.) 

* Action in trespass can be based 

, on constructive possession 1300 

Transfer of Property Act (4 

of 1882) 
* S. 3 Mango tree gifted 



Intention of the gift was that 
donee should enjoy fruit The 
tree is immovable property 

g 48; Property mortgaged for 
paying Government revenue 
Court directing mortgage to have 
priority over pre-existing mort- 
gage Prior mortgage is post- 



125 



946 



S. 2 Transfer made by order 
of Court is an exception to the 
section 940 

:S. 53 Suit by widow to set 
aside alienation by husband of 
his property made with a view 



T. P. Act 

to defeat plaintiff's claim for 
dower is a suit as contemplated 
by S. 53 4046 

S. 54 Unregistered dead is 

admissible in a suit for specific 
performance 896 

S. 60 Tender of mortgage 

money is not condition precedent 

to suit for redemption 5126 

S. 60 Integrity of mortgage 

cannot be broken except by con- 
sent of all persons interested or 
by mortgagee Consent of 
parties may be inferred from 
circumstances 940 

S. 63 Mortgagor allowing 

mortgagee to remain in posses- 
sion of the accession as occu- 
pancy tenant Subsequently 
mortgagor cannot claim the 
accession 572 

S. 74 Puisne mortgagee not 

impleaded in suit by prior mort- 
gagee Puisne mortgagee cannot 
redeem the property merely by 
paying the amount for which 
the property was purchased in 
auction 94d 

S. 74 Subrogation No sub- 
rogation if there is no redemp- 
tion Kedemption must be of 
entire security and not part 
Payment by subrogator must be 
on express agreement with deb- 
tor or creditor 23 

S. 81 Puisne mortgagee with 

notke of former mortgage can- 
not claim benefit of S. 81 946 

S. 83 Tender of mortgage 

money is not condition prece- 
dent to suit for redemption 5126 

S. 100 Decree for dower debt 

dot** not create a charge on the 
husband's property in the hands 
of his heirs 4040 

S. 101 Mortgagee purchasing 

mortgaged property at execution 
sale can use his mortgage as 
shield against subsequent incum- 
brancers 4786 

S. 107 English doctrine tfiat 

tenant, unless put in possession 
cannot sue for infringement of 
rights based on actual possession 
applies to Indian leases for a 
term of years In India lessee 
or sub-lessee can sue for damages 
for boing kept out of possession 508 



32 



SUBJECT INDEX, 1926 PATNA 



Trespasser 

See ADVERSE POSSESSION 

Trusts Act (2 of 1882) 

S. 6 According to Shiah Law 

property of heirless Shia is to be 
devoted to poor The dedica- 
tion is, however, vague and no 
trust is thus created 3210 

S. 10 Secretary of State can 

bo trustee 321/j 

w 

Will 

Execution Proof Ordinarily 

parties propounding must prove 
the due execution Party writ- 
ing Will getting benefit under 
it Court must be careful in 
satisfying itself that the instru- 
ment expresses the true will of 
the testator, but this is the rule 
of prudence and not of law 269 

Construction Donee a des- 
cribed as Malik Mokamit and 



Will 

permitted to mortgage the pro- 
perty in case of necessity 
Will confers an estate of a Hindu 
women and not absolute estate 

Withdrawal of Suit 

See CIVIL P. C., 0. 23 

Witness 

Credibility Witness being of 

the same caste as accused is no 
ground for disbelieving him 36c 

Words 

"Bahsht lands" are lands held 

by landlord on surrender or ab- 
andonment by tenants They 
retain the character of raiyati 
lands ( 6056 

Words "kharij jama" import 

"independent proprietor" 152 

"Malik" in a will does not 

necessarily confer absolute estate 76a 

Moghli The word does not 

constitute rent 08 



THE 



ALL INDIA REPORTER 



1926 PATNA 



COMPARATIVE TABLES 

(PARALLEL REFERENCES) 
Hints for the use of the following Tables : 

TABLE No. I. This Table shows serially the pages of INDIAN LAW 
REPORTS for the year 1926 with corresponding references of the ALL INDIA 
REPORTER. 

TABLE No. II. This Table shows serially the pages of other REPORTS, 
JOURNALS and PERIODICALS for the year 1926 with corresponding references of tha 
ALL INDIA REPORTER. 

TABLE No. Ill This Table is the converse of tha First and Second 
Tables. It shows serially the pages of the ALL INDIA REPORTER 1926 wibh corres- 
ponding references of all the JOURNALS including the INDIAN LAW REPORTS. 

Table No. I. 

Showing seriatim the pages of INDIAN LAW REPORTS, PATNA SERIES for the 
year 1926 with corresponding references of the ALL INDIA REPORTER. 

JV. B. Column No. 1 denotes pages of I. L. R. 5 PATNA. 

Column No. 2 denotes corresponding references of the ALL INDIA 
REPORTER. 

I. L. R. 5 Patna-AH India Reporter 



ILR! 


A. L R. 


ILK; 


A. I. R. 


ILK 


) A. I. R. 


ILK 


I A. I. R. 


ILK 


) A. L R. 


i 


1925 Jf 474 


157 


1926 P 197 


281 


1926 P 263 


452 


1926 P 802 


578 


1926 P 299 


8 


1926 162 


168 


n 255 


290 


PC 2 


461 


M PC 81 


585 


PC 56 


13 


1925 581 


171 


i 279 


306 


tt P 409 


484 


t, P 867 


595 


P 80& 


20 


1926 ' 256 


198 


f> M 17 


312 


PC 9 


465 


384 


681 


1927 ft 140 


23 


it t. 259 


205 


it M 258 


326 


tt P 330 


468 


474 


634 


1926 PC 19 


25 


ti t 176 


208 


it t 251 


341 


tt t 239 


476 


438 


646 


P 582 


33 


1925 , 717 


211 


M n 249 


346 


tt t 362 


480 


364 


714 


1927 tt 88 


40 


1926 > 184 


216 


n it 237 


350 


ft 1 


488 


413 


721 


tt ti 4 


46 


t 42 


221 


n 836 


861 


218 


496 


458 


726 


1926 tt 416 


58 


1925 PC 203 


220 


It It 141 


393 


tt 485 


505 


351 


735 


t' PC 60 


63 


1926 *P 232 


229 


1927 it 59 


398 


274 


511 


820 


746 


tt P 427 


80 


,, 130 


233 


1926 it 504 


404 


ft 260 


513 


887 


755 


1927 ti 23 


96 


1925* 743 


238 


i ft 253 


415 


465 


520 


483 


759 


1926 tt 401 


106 


,, 727 


243 


i* M 292 


433 


' t 359 


533 


tt 424 


765 


1927 >t 1 


110 
118 


1926 214 
ii ft 148 


249 
255 


it it 205 
it 246 


441 
445 


tt 192 
497 


536 


tt 493 


768 


1926 tt 528 


128 


' tt 40 


262 


tl M 81 


447 


400 


539 


ft 821 


678 


1927 ft 3& 


135 


1925 PC 280 


276 


M M 289 


450 


tt 368 


573 


tf >t 535 


777 


M tt 61 



1926 N. S. T. (Pat.) 5 



Table No. II 



Showing seriatim fche pages of other REPORTS, JOURNALS and PERIODICALS 
for the year 1926 with corresponding references of the ALL INDIA REPORTER. 
N. B. Column No. 1 denotes pages of other JOURNALS. 

Column No. 2 denotes corresponding references of the ALL INDIA 
REPORTER. 

1926 Patna High Court CasesAll India Reporter. 



PHCC) A. 1. *. 1 PriOO) A. 1. *. | Prlox.) A. 1. K. | PHOC) A. 1. R. 


PHCC) A. I. R. 


1 


1926 P '205 


86 


10*6 P '274 


138 


1926 P 836 


228 


19*6 P 416 


300 


1926 J 116 


4 


. .1 246 


80 


M M 81 


139 


n i 316 


236 


.1 421 


302 


" P 516 


9 


.1 .1 411 


97 


t n 276 


142 


1925 n 618 


241 


ti 481 


303 


ii 564 


11 


, 89 


99 


i. 423 


145 


1926 321 


246 


J 166 


305 


1927 . 


18 


.1 II 211 


100 


1925 .. 822 


158 


t 432 


249 


. P 478 


310 


1926 , 337 


16 


M 62,5 


102 


1920 M 334 


100 


J 183 


254 


444 


314 


' 490 


19 


. n 197 


103 


ti i 277 


161 


1927 P 135 


250 


. i. 461 


321 


> ' 438 


24 


.. J 88 


105 


M n 258 


167 


1926 .. 440 


258 


. M 495 


323 


1927 25 


29 


M p 150 


100 


1925 M 717 


170 


493 


201 


. .1 487 


327 


1926 i 474 


34 


M M 241 


110 


1920 M 267 


178 


404 


204 


. n 460 


332 


1927 i 57 


37 


>t 239 


113 


i . 288 


183 


. M 351 


2G5 


i M 430 


333 


1926 457 


40 


1925 G91 


114 


1925 727 


187 


ii 348 


267 


. i 449 


338 


1927 i 97 


42 


1926 J 138 


117 


1926 M 295 


190 


n 299 


274 


. M 4 fc7 


342 


92 


44 


1925 P 540 


118 


M i 356 


195 


., i. 304 


279 


514 


344 


i 93 


49 


1920 218 


121 


1927 M 90 


199 


M 340 


282 


* M 359 


349 


7 


65 


,, 260 


123 


1926 M 273 


207 


M i 347 


286 


i M 512 


353 


114 


70 


. II 17 


125 


" 296 


210 


n M 385 


288 


i ii 403 


858 


. 106 


74 


1925 755 


129 


1925 733 


220 


M 395 


290 


i .. 569 


362 


1926 t 549 


81 


1926 > 504 


134 


1926 M 291 


223 


M 363 


293 


* 561 


381 


1927 118 


83 


i, 266 


137 


M M 140 


225 " 401 


2 OH 


n M 605 


3H8 


1926 * 464 



7 Patna Law Times-All India Reporter. 



CT 


A. 1. R 


"PL? 


) A. I. K. 


jPLr 


) A. I. H. 


TO 


') A. I. R. 


TPT 


f) A. I. R. 


i 


1926 P 71 


114 


1926 P 81 


I 25ll 


1926 P 10 '2 


381 


1925 P 534 


499 


1926 P 207 


4 


1 025 > 544 


T24 


1925 it 480 


259 


n M '29 


383 


1920 n 302 


501 


PC 50 


*) 


.. 473 


127 


1926 M 428 


260 


1925 748 


388 


1925 M 700 


507 


1025 P 787 


11 


1920 " 65 


129 


1926 M (502 


'204 


1920 ii 104 


301 


1026 256 


524 


1920 29<> 


14 


1925 ii 3HI 


1U4 


1920 > 257 


4 207 


ii " 180 


302 


.. " 147 


529 


M 402 


19 


.1 PC 213 


130 


170 


209 


1025 >i 581 


303 


n 102 


530 


" M 52- r 


22 


1920 P 23 


138 


1927 . 90 


2?a 


1926 ii :J6 


396 


i " 232 


532 


ii 260 


25 


1925 " 702 


140 


Iy20 ' 105 


275 


1925 PC 257 


407 


" 351 


535 


" 457 


27 


M 591 


145 


M 150 


280 


ii P ri5 


410 


.. 143 


540 


M 46* 


30 


1926 . 287 


150 


87 


285 


n i, 080 


415 


1025 577 


542 


440 


35 


181 


153 


ii M 33 


287 


ii 712 


420 


1026 i 358 


547 


n . 187 


30 


34 


156 


M ii 67 


4 2HH 


1924 n 5H9 


424 


1025 138 


552 


>< 70 


39 


M , 02 


158 


. 77 


291 


1020 .. 27 


425 


1020 241 


553 


PC 70 


42 


14 


161 


1925 t> 576 


'293 


. J irta 


428 


168 


561 


* || P 148 


45 


M > 137 


163 


1926 PC 9 


295 


P 154 


431 


1025 i 765 


567 


i i 316 


47 


1926 > 820 


170 


> P 268 


299 


n ii 122 


441 


1926 / 138 


570 


" 444 


49 


ti > 818 


175 


1925 441 


304 


. 214 


448 


P 346 


573 


" 255 


62 


192G 17 


178 


1926 n 268 


810 


76 


445 


.. J 88 


575 


n PC 98 


67 


H 40 


183 


M 184 


313 


ii 218 


449 


P 292 


577 


M p 380 


61 


i 194 


186 


1925 651 


330 


ii 160 


453 


n >i 239 


587 


M >< 425 


66 


53 


188 


1926 n 180 


333 


ii 209 


456 


1925 M 807 


589 


" 432 


67 


1925 > 784 


199 


25 


335 


i M 400 


461 


1926 ii 274 


591 


ii PC 46 


71 


1U2& 80 


203 


M i 269 


387 


ii 818 


463 


n M 258 


599 


P 537 


78 


192$ t 796 


209 


1925 . 585 


340 


ii 141 


465 


i. * 205 


602 


w M 519 


76 


> 697 


218 


1926 246 


*43 


1925 M 755 


468 


i >i 202 


604 


u " 542 


79 


1926 > 244 


218 


i 560 


350 


1926 533 


473 


1025 r 477 


608 


4 '*'" 
499 


82 


1936 . 074 


220 


1925 i 692 


353 


1924 ' 628 


478 


M . 737 


622 


M 178 


87 


ii > 647 


223 


1926 PC 2 


355 


1925 42 


481 


1926 .. 67 


625 


ti M 210 


90 


1926 190 


233 


1925 P 743 


362 


ii M 73 


483c 


M PC 60 


A OR 


.. m ft 


96 


1926 822 


339 


M 797 


867 


i n 566 


4/91 


n P 409 


040 


i OJLO 


97 


n PC 280 


253 


n 549 


372 


1925 677 


495 


ii n 259 


628 i 


.. i 604 


111 


M P 494J 


256 


1926 M 1C2 


375 


1926 i 197 


496 


tt M 393 


631 


ii 366 



Comparative Tables 



7 Patna Law Tiraes-AH India Reporter (ConcW.) 



35* 



PT? 


T. 1 A. 1. R. 


TFI 


..f.| A.i.4. 


7TF 


7n 


A. 1. K. 






A. 1. *. 






$84 


1926 P 862 


6V7 


1926P 277 


734 


192 


5 P 623 


779 


19i 


to P 4^1 


804 


1926P 547 


641 


527 


679 


321 


737 


192 


7 .1 45 


784 




i " 485 


807 


299 


642 


> '251 


695 


305 


739 


,, 


" 135 


788 




837 


811 


M *, 516 


644 


1925 .. 810 


716 


368 


746 


192 


5 276 


793 




* 320 


812 


.. >, 498 


bt>V 


> 678 


717 


213 


747 


, 


549 


794 




867 


816 


PC 105 


661 


1926 PC 94 


719 


427 


768 


, 


J 174 


795 




462 


821 


P 582 


664 


> P 404 


724 


474 


770 


, 


P 464 


797 


192 


7 44 


870 


< .. 863 


6'U 


436 


730 


89 


772 


, 


267 


798 


192 


3 411 


871 


t. . r>0 


6V 3 


211 


732 


, , 399 


775 




545 


801 




ttfifl 




M f r i8& 



27 Cr. L. J. & 91 to 98 Indian Cases=All India Reporter 



Cr.L.J. 

& 
I.C. 



tCr.L.J, Cr.L.J. ICr.L.J. 

A. I. R. I & A. 1. R. & A. I. R. & 

_ I I.C. I I.C. I I. .C 



A. 1. R. 



|Cr.L.J. 

& 

I.C. 



A. I. R. 



Please refer to COMPARATIVE TABLE No. II in A. I. R. 1926 Lahore. 



Table No. Ill 

Showing seriatim the pages of the ALL INDIA REPORTER, 11)26 PATNA SECTION 
with corresponding references of other REPORTS, JOURNALS AK1> PKRIODIGALR, in- 
cluding the INDIAN LAW REPORTS. 

N. B. Column No. 1 denotes pares of the ALL INDIA Ri'WKTKR, 1026 PATNA. 
Column No. 2 denotes corresponding references of other BEPORTS* 
JOURNALS AND PERIODICALS* 

A. I. R. 1926 Patna=Other Journals. 



AIR | Other Journals 


AIR | Other Journals 


AIR | Qther Journals 


AIR 


Other Journals 


1 


1925PITC C 27 


31 14 Pat G9 


57 


7 P L T 48 


89 


1926PJ./CC 31 




6 P LT 73 




6 P L T 80 


58 


26 CrLJ 147 




96 JC 187 




90 1C 73 




88 1C 92 




89 J C 104 




7 P L T 73ft 




5 Pat 360 


82 


6 PL T 70 


61 


90 JC 27 


IK) 


1 Pa' 824 


5 


20 CrLJ 1580 




26 CrLJ T24 


62 |7 P L T 3 




6 P L T 59$ 




90 1C G61 




88 1C 864 


(89 1C 09 




90 J. C 66 


9 


1925P 11 C C '281 


33 


90 1C 262 


64 ,90 1C 48 


94 


192-jP JJ C C 28 




6 P LT 787 




7 P T 153 


67 


26 Cr L J 128 


102 


90 JC 72$ 




90 1C 895 


34 


26 CV / 1394 




89 JC 15 




7 PLT 266 


14 


7 P LT 42 




89 1C 706 




7 P L T 15P 


103 


4 Pat 799 




90 1C 454 


17 P*L T 36 


68 


89 / C 1020 




90 J C 513 


16" 


3 Pat L U 111 


36 


26 Or L ,/ 1551 


70 '20 Cr L J HO- 


10'J 


J Pai 752 




6 P L T 797 




90 JC 439 


(90 JC 160 




91 J C 476 




8 / C 897 




7 P Jj T 272 


71 17 P J; T 562 


112 


89 JC 91S 


17 


7 PL T 2 


37 


89 i C 863 


i? P I, T 


J'2'2 


192- r P U C C 35B 




90 I Q 553 


40 


5 Pat 128 


LS9 JC 70 1 2 




92 1 C bl'f 




1926P U C ( ' 70 




7 P L T 57 


73 14 Pat 766 




7 P L T 299 




5 Pai 198 


90 [ ( ' 680 


!U2 ./ C I'i'J 


ri> 


90 JC 769 


20 


5 P L T 620 


42 


5 Pat 46 




7 P Zy T 362 


128 


90 JC 217 




92 1C 874 




1925P # C C 298 


76 


90 JC 757 


129 


89 JC 886 




27 Cr L J 362 




90 /C 871 




7 P LT 310 


130 


5 Pat 80 


23 


7 P LT 22 




7 P L T 355 


7 


1925J' # C C 317 




1925P JET C C 254 




89 1C 822 


47 


90 1C 325 




90 JC 785 




91 J C 169 


25 


26 CYZ.,7 1565 


49 


88 1C 820 




7 PLT 158 




7 PLT 188 




90 1C 445 


51 


26 Cr Jj J 1511 





1 P LT 71 


37 


1 P^T & 




7 BLT 199 




90 i C 295 




90 JC 352 




JO JC 1 


27 


4 Pa 7C4 


53 


1 P L T 65 


1 


7 PLT 114 


39 


26 CrLJ 1627 




91 IC 483 




26 CrJO tT 1462 




1926PHCC 89 




30 JC 92S 




7 P L T 291 




39 JC 1050 




5 Pa* 262 


40 


PLT 869 


128 


W JC 82 


4 


30 1C 708 




27 CrLJ 641 




2 JC 360 


29(1) 


26 Cr L J 1289 


5 


7 ,PL!T 11 




?4 JC 693 




926P H C C 187 




59 'JC 153 




38 JC 989 


7 


L925P H C C 338 


41 


926P H C C 867 




7 P L T 259 


7 


26 Cr L3 1502 




30 JC 622 




2 10 629 


29 (2) 


90 JC 329 


1 


X) /C 158 




7 f Ji T 150 




Pat 228 



36 



1926 Patna 



A. I. R. 1926 Patna=Other Journals (Contd.) 



AIR I Other Journals AIR | Other Journals 


AIR I Other Journals AIR | Other Journals 


141 (7 PL T 340 


194 


7 PLT 61 


258 


27 CrLJ 512 


802 


27 CrLJ 849 


148 


90 1C 799 




90/0 244 


255 


5 Pa* 168 


305FB 


5 Pa* 595 




7 PLT 410 


196 


6 PLT 799 




94 1C 13 




96/0 791 


146 


6 PLT 860 




27 CrLJ 142 




7 PLT 573 




7 PLT 695 




92 1C 2 




91/0 814 


256 


5 Pa* 20 


316 


1926P H C C 139 


147 


1925P HOC 859 


197 


5 Pat 157 




93/0 999 




94/0 705 




92 1C 626 




1926PJ/CC 19 




7 PLT 391 




27 Or L J 657 




7 PLT 392 




90 / O 862 


257 


7 PLT 134 




7 P L T 567 


148 


5 Pa* 118 


17 PLT 375 




98/0 351 


318 


7 PLT 337 




1925P II C 305 


202 4 Pat 696 


258 


5 Pa* 205 




96/0 623 




90 1C 812 


93/0 935 




1926P H C C 105 


320 


5 Pa* 511 




7 P L T 561 




7 P L T 468 




94/0 10 




96/0 446 


162 


90 10 777 


205 


1926P HCC 1 




7 PLT 463 




7 PLT 793 


154 


1925P J? C C 880 




5 Pa* 249 


259 


5 Pa* 28 


321 


1926P H C C 145 




90 1C 739 




94 1C 826 




93/0 1001 




94/0 433 




7 PLT 295 




7 P L 7 465 




7 PLT 495 




5 Pa* 539 


166 


1926P H C C 29 


207 


4 Pat 723 


260 


1926PJ/CC 65 




7 PLT 679 




90/0 929 




93/0 982 




5 Pa* 404 


330 


5 Pa* 326 




7 P L T 145 




7 P .L !T 499 




94/0 624 




94 1C 273 


159 


90/0 834 


209 


92/0 900 


263 


5 Pa* 281 




7 PLT 577 


160 


1925P H C C 315 




4 Pa* 688 




7 PLT 170 


U34 


1926P H C C 102 




90 I 847 




7 PL T 333 




93/0 1001 




94/0 103 




7 PLT 330 


210 


3 PatLR 339 


266 


1926P H C 83 


335 


1926P H C C 138 


169 


5 Pa* 8 




95/0 293 




94 1C 31 




95 1C 441 




90 1C 817 




7 PLT 625 




7 PLT 532 


836 


5 Pa* 221 




7 PLT 257 


21X 


1926PJETOC 13 


267 


1926P H C C 110 




96 1C 206 


164 


1925P H O C 824 




95/0 273 




27 Or L J 609 


337 


94 / C 284 




91/0 799 




27 Cr L J 703 




94/0 353 




5 Pa* 518' 




7 PLT 264 




7 PLT 673 




7 PLT 772 




1926P H C C 310 


465 


1925P H C C 338 


218 


3 PatLR 341 


269 


7 PLT 203 




7 PLT 788 




7 PLT 140 




95/0 303 




95/0 1036 


340 


1926P H C C 199 




90/0 790 




7 PL T 717 


273 


1626P H C C 123 




96 1C 188 


168 


26 CrLJ 1611 


214 


5 Pa* 110 




94/0 510 




6 Pa* 51 




90 1 715 




7 PLT 304 


274 


5 Pa* 398 


346 


7 PLT 443 




7 P L T 428 




93/0 963 




1926PHCC 86 




96/0 115 


170 


4 Pat 783 




27 Cr LJ 499 




94/0 36 




27 CrLJ 867 




7 P T 186 


218 


1926PHOO 49 




7 PLT 461 


347 


1926P H C C 207 




21 CrLJ 9 


FB 


7 PLT 313 


276 


1926P.HCC 97 




96/0 221 




91/0 41 




93/0 939 




94/0 209 




27 CrLJ 909 


171 


6 P r, T mn 




5 Pa* 361 




7 PLT 746 


348 


1926P H 187 


85 I C 852 


232 


5 Pa* 63 


277 


1926P HCC 103 




27 Cr L J 841 


178 14 Pat 795 




93 1C 884 




94 / C 229 


95 1C 761 


98 1C 986 




7 PLT 396 




7 P L T 077 


351 7 PLT 407 


27 Or L J 522 




27 Cr L / 484 


279 


5 Pat 171 


5 Pa* 505 


17 PLT 522 


237 


5 Pa* 216 




96 T 509 


90 / C 242 


175 190 1C 621 


7 PL T 30 




27 Cr L J 957 


353 192GP // C C 183 


176 5 Pat 25 


93 / C 146 


288 


1926P/rCG' 113 


95 1C 867 


6 PLT 833 


27 CrLJ 418 




94 1C 553 


17 PLT 801 


27 Cr L J 235 


239 1926P It C 37 


289 


5 Pa* 276 


356 1926P 71 C C 118 




92 / 219 


!93 I C 303 




94 1C 765 


94 1C 750 


180 


3 Pat L R 270 


5 Pa* 341 


291 


1926P II C C 134 




7 .P 7, T 661 




92/0 184 


|7 PL T 453 




94 / C 506 


358 


7 PLT 420 




7 P L'T Qfi7 


241- 


1926P II C C 34 


292 


5 Pa* 243 




95 1C 935 


181 7 PLT ~35 




93 /O 300 




7 PLT 449 




27 ' Cr L J 855 


90 T a 7d 




7 PLT 425 




94 1C 890 


359 


5 .Pat 433 


182 


26 Or J 1498 


244 


7 P L T 79 




27 CrLJ 698 




1926P /fCC 282 




90/0 154 




93/0 40 


295 


1926P HCC 117 




96/0 627 


184 


5 Pat 40 




27 Or L J 392 




94 / C 558 


362 


5 Pa* 346 




90/0 822 


246 


1926P H C C 4 


296 


1926P H C C 125 




95 / O 396 


187 
190 


7 P L T 183 
94/0 <J2<J 
7 PLT 547 
1925P H 311 
7 PLT 90 


249 


7 PLT 218 
5 Pa* 255 
94 1C 841 
5 Pa* sill 
94 1C 22 


299 


94 / C 714 
27 CrLJ" 666 
7 PLT 524 
1926P HCC 190 
27 CrLJ 611 


363 


27 Or L J 796 
7 J? L T 634 
1926PHOO 228 
96 1C 1036 


192 


90/0 687 
1925P H C C 343 
92/0 177 


251 
253 


5 Pa* 208 
94/0 19 
7 PLT 642 
7 PLT 178 


302 


94 1C 355 
5 Pat 578 
7 PLT 807 
7 PLT 388 


364 


6 Pat 64 
7 P L T 870 
1926P H C 195 
5 Pa/ 480 




7 PLT 393 




5 P(it 288 




5' Pa* 452 




95 1C 1051 




5 Pat 441 




93/0 976 




95 1C 929 


367 


5 P/T/5 464 



Comparative Tablet 



37 



A. I. R. 1926 Patna=0ther JournaIi-(C<mcW.) 



-A 1 R | Other Journal* 


A 1 R | Other Journal! 


A 1 R | Other Journals 


A 1 R | Other Journals 


867 


96 1C 528 


424 


5 Pat 533 


474 


5 Pat 468 


524 


96 JC 587 




27 CrLJ 976 




98 JC 254 




96 1C 287 


525 


1926PJETCC 16 




7 PLT 794 




27 CrLJ 1310 




1926PHCC327 




7 PLT 530 


368 


5 Pat 450 


425 


7 P L T 587 




7 PLT 724 




26 CrLJ 1585 




96 1C 651 




98 JC 392 


478 


97 JC 205 




90 JC 657 




7 PLT 716 




27 CrLJ 1820 




1926P H C C 249 


527 


7 PL? 641 




27 CrLJ 987 


427 


1926P H C C 274 


481 


1926PHCC 241 




6 Pat 48 


969 


94 1C 1007 




95 JC 091 




96 JC 161 




97 JC 789 


384 


5 Pat 465 




5 Pat 746 


484 


1926P H C C 388 


528 


9G JC 487 




96 1C 605 




7 P L T 719 


485 


5 Pat 398 




5 Pat 768 


885 


1926P#CC 210 


430 


1926P h C C 265 




96 JC 937 


529 


96 JC 571 




96 1C 1027 




97 JC 476 




7 P L T 784 




8 PLT ,17 


892 


95 JC 648 


432 


7 P L T 589 


487 


1926P IT C C 261 


532 


96 JC 495 


898 


7 PLT 496 




1926P HOC 158 




08 JC 374 


533 


7 PLT 350 




96 JC 873 




95 JC 348 


489 


96 JC 278 




90 JC 761 




27 CrLJ 1017 


433 


5 Pat 520 


490 


96 JC 281 


535 


5 Pat 573 


395 


1926P # C C 220 




98 1C 394 


493 


5 Pat 536 




8 PLT 183 




96 JC 1037 




27 CrLJ 1322 




1926P H C C 176 




98 JC 252 


897 


97 JC 798 


436 < 


95 JC 966 




27 CrLJ 792 




27 CrLJ 1808 




8 PLT 28 




7 P L T 671 




95 1C 392 


537 


7 PLT 599 


399 


95 JC 548 


438 


5 Pat 476 




7 P L T 812 




97 1C 289 




7 PLT 732 




1926P H C C 321 


495 


1926P H C C 258 


589 


96 JC 468 


400 


5 Pat 447 




98 , J C 364 




98 JC 991 


542 


7 PLT 604 




7 P L T 335 


440 


1926P H C C 167 


497 


5 Pat 445 




97 JC 618 




27 CrLJ 704 




27 CrLJ 594 




98 JC 759 


545 


7 PLT 775 




94 JC 896 




94 JC 258 


498 


96 JC 442 




96 JC 448 


401 


1926P H C C 225 


444 


1926P H C C 254 


499 


7 P L T 608 


547 


7 PLT 804 




96 JC 529 




7 P L T 570 




1926P H C C 314 




96 JC 444 




5 Pat 759 




97 JC 210 




27 CrLJ 1090 


549 


1926P HCC 3G2 




8 P L T 124 


446 


7 P L T 542 




97 JC 354 




7 PLT 74? 


403 


1926P H C C 288 




97 JC 48 


503 


96 JC 569 




96 1C 807 


, 


97 JC 175 




27 Cr L J 1072 




6 Pat 80 


560 


7 PLT 218 




6 Pat 69 


449 


1926P H C C 267 




7 P L T 871 




26 CrLJ 1608 


404 


1926P E C C 178 




6 Pat 83 


504 


5 Pat 233 




90 JC 712 




95 JC 367 




99 JC 112 




1926PSCC 81 


561 


1926P HCC 293 




7 PLT 664 


453 


5 Pat 496 




7 PLT 628 




97 JC 608 


408 


8 P L T 38 




98 JC 482 




94 JC 28 


564 


1926P H C C 303 




97 J C 822 


457 


7 P L T 535 


508 


96 JC 558 




97 JC 152 


409 


5 Pat 306 




97 JC 105 




5 Pat 94 


566 


27 CrLJ 1011 




7 PLT 491 




1926P H C C 333 


512 


926P H C C 286 




7 PLT 8G7 


j 


96 JC 942 


460 


1926P H C C 264 




97 JC 348 




J7 JC 17 


111 1926P H C C 9 




96 JC 1010 




3 Pat 102 


569 


8 P L T 95 


96 1C 3 


161 


1926P H C C 256 


513 


96 JC 585 




1926P h C G 290 




7 P L T 798 




7 P L T 540 


514 


1926P II C C 279 




97 JC 648 


413 


5 Pat 488 




97 JC 436 




97 JC 1 




27 Cr L / 1128 




98 JC 767 


462 (1) 


97 JC 128 




8 PLT 9 


572 


97 JC 100 


416 


1926P HOC 228 




7 P L T 529 


516 


1926P HCC 302 




8 P L T 23 




$ JC 575 


462 (2) 


96 JC" 327 




96 1C 440 


575 


97 JC 385 




5 Pat 726 




7 P L T 795 




7 P L T 811 


577 


97 JC 282 


421 J1926P H C C 236 


464 


27 CrLJ 844 


517 


27 CrLJ 953 


580 


97 JC 68 




)6 J,C 632 




95 1C 764 




96 JC 505 




8 PLT 20 




3 Pa* 73 




7 P L T 770 


518 


7 P L T 626 


582 


5 Pat 646 




7 PLT 779 




1926P If C C 383 




97 JC 343 




7 PLT 821 


423 


L926PHCC 99 


465 


5 Pat 415 


519 


7 PLT 602 




99 JC 782 




7 P.LT 127 




98 JC 893 




97 JC 612 


605 


1926P Jf C C 298 


< 


W JC 556 


472 


95 JC 875 


520 


27 CrLJ 970 




97 JC 494 












96 JC 522 




8 PLT 31 



THE 

ALL INDIA REPORTER 

1926 PATNA 



I. L. R. ALPHABETICAL INDEX 

of Cases reported in 

I. L. B. 5 PATNA 

WITH REFERENCES TO THE PAGES OF 

The All India Reporter 

|HS Casos; 

Names of Parties I. L. R. pp A. L R. pp^ 

Abdul Gaffar, Sheikh v. F. 13. Downing ... ... 415 1926 P . 165- 

Abdul Ghaffar, Sheikh v.F.B. Downing ... ... 256 * ^46 

Achutanand Jha v. Svtrjanarain Jha ... ... 746 " " 427 

Achuta Bam v. Jainandan Tewary ... ... ... 468 474 

Adifcya Prasad Singh v. Bam Narayan Das ... ... SB 11925 P 474 

Ambika Prasad bingh v. Commissioner of Income-tax 

Bihar and Orisa... ... ... ... 20 1926 P 256 

Ambika Singh v. King-Emperor ... ... ... 450 * " 368 



Badri Gope v. King-Emperor 
Badri Narayan v. East Indian Bailway Company 
Badri Narayan Singh v. Mahant Kailash Gir 
Baidyanath Jiu Sri Sri v. Har Dutt Dwari... 
Baijnath Bai y. Mangla Prasad Narayan Sahi 
Barkatnnnisa Begnm Mb. v. Mt. Kaniza Fatma 
Basndeo Bhagat v. Sheikh Kadir 
Batina Kuer Mt. v. Baja Bam Pandey 



216 1926 P 237 

755 1927 P 23 

341 1926 P 239 

249 20/>. 

350 1 

631 1927 P 140 

433 1926 P 359 

441 " . 192 



Bengal and North- Western Bailway Company v. 

TupanDass ... ... ... ... 465 '384 

Bengali Gope v. King-Emperor ... ... ... 447 . " 400> 

Bengal-Nagpnr Bailway Co., Ltd. Agent of the v. 

Hamir Mull Chagan Mull ... ... ... 106 1925 P 727 

Bhatu Bam Modi v. Fogal Bam ... ... 223 1926 P 141 

Bindeshwari Prasad Singh v. Maharaja Kesho Prasad 

Singh ... ... ... ... PC 634 . tPC 79 

BodhaGanderi v. Ashloke Singh... ... ... .765 1927 t P 1 

Chairman, District Board, Monghyr v. Sheodutt 

Singh ... ... ... ... 476 1926 P . 438 

Ohanflerehoor Deo v. Banwari Lall ... . ... 773 1927 P 3&- 



I. L. R. ALPHABETICAL INDEX, 1926 PATNA 
Names of Parties I. L. R. pp. 



Chandra Mouleshwar Prasad Singh Bahadur Maharaja 

v. Hem Nalini Devi 
Chandra Prasad v. King-Emperor 
Chandreshwar Prasad Narain Singh v. Bisheshwar 

Pratap Narain Singh 

Dangal Ram v. Jaimangal Saran 
Daroga Gope v. King-Emperor ... 
Dhakeshwar Prasad Narain Singh Raja v. Gulab 
Kuer 

East Indian Railway Company v. Bhimraj Srilal 
v. Kishnn Chand Kasarwani 
Emperor v. Gobind Singh 
Farman Khan v. King-Emperor ... 
Firangi Singh v. Durga Singh 

<3anesh Lai Pandit v. Khetramohan Mahapatra 
Gangadhar Misra v. Rani Debendrabala Dasi 
Great Indian Peninsular Railway v. Datti Ram 

Hira Bibi v. Ram Hari Lall 
Iltaf Khan v. King-Emperor 

Jagwa Dbamik v. King-Emperor 
Jhapsi Sao v. Mt. Bibi Aliman 

Kesho Prasad Singh Maharaja v. Shamnandan Rai 

Khiri Chand Mahfcon v. Mfc. Meghni 

Khudi Rai v. Lalo Rai 

Khursaidi Begum M*;. v. Secretary of State ... 

Kishun Mandar v. King-Emperor... 

Krishnaballabh Sahay v. His Excellency the Governor 

of Bihar and Orisa 
Krishna Chandra Gauntia v. Raja Mahakur ... 

Lalchand Marwari v. Mahanth Rarnnip Gir... 
LaJu Mathura Prasad Singh v. Lalu Jageshwar 
Prasad Singh 

JMadho Ray v. Mt. Bibi Mahbuwan Nisa 

Makhru Dusadh v. King-Emperor 

Malik Fazl'<fll Rahman v. Mfc. Kokila 

Manisty v. Jameson ... 

Man Singh Rao Bahadur v. Maharani Nowlakhbati 

Midnapur Zamindari Co., Ltd. v. Ram Kanai Singh 

Deo Darpa Saha ... 

Mohammad Yasin Sheikh v. King-Emperor ... 
Muhammad Afzal Syed Qazi v. Lachman Singh 

-Ibrahim v. Chhattoo Lai 

Sharif v. Rai Hari Prasad Lai 

Nanhak Sao v. King-fimperor ... 

Nil Madhab Chowdhry v. King-Emperor 

Parshan Sahi v. G. L. Richardson 

Peari Dai Debitors Srimati v. Naimish Chandra Mitra. 



726 
578 



A.LR. 



1926 P 



777 1927 P 



480 
33 



1926 
1926 



P 
P 



39 
PP. 

410 
299 

61 

364 
717 



... PC 735 1926 PC 60 

488 1926 P 413 

221 336 

573 * 536 

520 1926 P 43:) 

243 292 

... PC 585 1926 PC 56 

211 249 

118 P 148 

... PC 58 1925 PC 20:) 

346 1926 P 362 



232 
263 

504 
45:) 
259 
321 
424 

M6 
ai 



... PC 312 1926 PC !J 

404 * P 1460 

721 1927 P 46 

464 1926 P 367 

511 320 

326 ' * 330 

... PC 290 PC 2 

80 P 130 

452 " 302 

306 * 409 

398 * 274 

229 1927 P t 59 

536 1926 P 493 

171 * 279 

276 1926 P 289 

40 184 





63 
281 


1926 


P 

it 




233 
496 
23 
539 
533 


1926 

if 
tt 
it 


P 

tt 
tt 
it 


FB 


595 
208 


it 


^ 



40 



I. L. B. ALPHABETICAL INDEX; 1926 PATNA 



Names of Parties 



I. 



Badhe Lai v.Bast Indian Bail way t3o., Ltd.... 
Bajendra Narayan Bhanja Deo Baja v. Commissioner 

of Income-tax, Bihar and Orissa 
Kaj Gopal Acharjya v. Upendra Achariya Goswami 
Bamchandra Modak v. King-Emperor 
Bam Chandra Singh v. Jang Bahadur Singh... 
Bameshwar Narain Singh Kumar v. Mahabir Prasad 
Bamgulam Sahu v. Chintaman Singh 
Bamjhari Kuer Mt. v. Lala Kashi Nath Sahai 
Bam Loohan Das Mahanth v. Nandi Jha 
Bam Sumran Prasad v. Gobind Das 
Bamsundar Isser v. King-Emperor 
Banjifc Narain Singh v. Bambahadur Singh ... 
Bukmin Das Mahanth v. Deva Singh 
Bup Lai Singh v. Secretary of State 

Siban Bai v. Bhagwat Dass 
Sib Sahiab Lai v. Sir Bijai Chand Mahtab ... 
Sita Bam Singh v. Khub Lai Singh 
Sourendra Mohan Sinha v. Hari Prasad 
Sourendra Mohan Sinha v. Hari Prasad Sinha 
Subedar Bai v. Bambilas Bai 

Tokh Narayan Puri Mahanth v. Bam Bachhya Singh 

Uma Habiba Bibi y. Mt. Basoolan 

Upecdra Chandra Singh v. Sadar Chranjifc Singh 

Wajihunnissa Begum Mt, Bibi v. Babu Lai Mahton 

[88 Oases,] 



L.R. 


pp. 


A. 1.1 


*. pp. 




128 


1926 ] 


P 40 




13 


1925 I 


> 581' 




768 


1926 I 


528 




110 


n 


214 




198 


tt 


17 




759 


tt 


401 


FB 


361 


n 


218 




513 


n 


337 




393 


n 


485 




646 


n 


582 




238 


n 


253 




262 


tt 


81 




505 


,t 


351 




205 


't A 


- 258 




25 


1926 I 


> 176 




157 


tt tt 


197 




168 


tt 


255 


PC 


135 


1925 I 


?C 280 


PC 


461 


1926 I 


>C 31 




8 


I 


> 162 



96 1925 P 743 

445 1926 P 497 

714 1927 P 38 

46 1926 P 42 



LIST OF CASES OVERRULED 
1926 PATNA 



Krishna Dayal Gir v. Syed Abdul Gaffur 
(1917) 2 Pat. L. J. 402=2 Pat. L. W. 



299=40 1. 0. 13 (F. B.) 



Overruled in 



A.I.E. 1926 P. 0. 126 



THE 



ALL INDIA REPOB3ER 

1926 

PATNA HIGH COURT 



* A. 1. R. 1926 Patna 1 

ADAMI AND SEN, JJ, 

Baijnath Rai and others Defendants 
Appellants. 

v. 

Mangla Prasad Narayan Sahi and 
others Respondents. 

Appeal No. 849 of 1922, Decided on 23rd 
Jung, 1925, from the Appellate Decree of 
the Sub- Judge, Muzaffarpur, D/- 10th 
June, 1922. 

if (a) Hindu Law Succession, effect of Heirs 
whether male or female are bound to maintain 
those whom last holder was bound to maintain 
Maintenance includes marriage expenses. 

Where a person takes a property, either by 
inherit ince or survivorship, he is legally bound to 
maintain those whose maintenance was a charge 
upon it in the hands of tha last holder. A 
famale heir is under exactly the same obligation 
to iruintain the members of a family as a male 
Jieir would be by virtue of succeeding to the 
same estate. The obligation extends even to 
the King when he takes the estate by escheat or 
by forfeiture. The duty of the person who 
inherits is to provide for the maintenance, 
education, .marriages, sradha and other usual 
religious expanses of the co-parceuers and of such 
nnmbers of their family as they are, or were, 
when alive,' legally or morally bound to main- 
tain. [P 3 1] 

^ ^T (b) Hindu LawReversloner has no interest 
in the estate Compromise with reversioner does 
not bind reversionary body and is wholly void. 

The interest of a Hindu reversioner has been 
defined as spes successions, that is, a -mere 
possibility of succession. Such a possibility 
gives no interest to the reversionary heir in the 
estate of the deceased, present or future, vested 
or contingent ; (46 Oal. 590 (P. 0,) and 6 fat. 
L. J. 604, Foil.) An alienation byway of com- 
promise entered into between t, limited owner 
and persona who had no bona fide claim to the 
property at the time of the compromise is not 
binding on the reversloners ; 3 Pit. L. J. 88 



1926 P/l & 2 



S. M. Mullick and S. Dayal for 
Appellants. 

LJ. N. Singh and L. K. Jha for Res 
pondents. 

Sen, J. The appellant instituted a 
suit out of which this appeal arises for 
redemption and possession of certain 
specified shares in the properties set out 
in the plaint whieh he alleged were in 
wrongful possession of the defendants 
first party. The following faofcs appear to* 
be undisputed, the questions raised being 
only as to the character and legal effect 
of some of the transactions : 

Upon the death of one Bam Ratjn Singh 
the family property, except certain par- 
cels which went to widows in lieu of fcheir 
maintenance, came into the hands of one 
Dhuna Singh, his grandson, by his son 
Maniar Singh. Subsequently on the 
death of Dhuna Singh the estate went by 
inheritance to his mother Musammat 
Ramdularee Kuer, the widow of Maniar 
Singh. On the llth April 1896 Ram- 
dularee executed a mortgage bond (Ex. 8) 
for Rs. 1,000 in favour of one Jagarnath 
Sahi, cousin of Durga Prasad Naraifc Sahi 
(the father of the plaintiff). By this 
mortgage bond the Musammat purported 
to hypothecate 12 annas of Tauzi floe. 
2345 and 2346 by way of security for the 
loan which she purported^ to raise for 
defraying the expenses of marriage* itf 
Mtnammat Ramsumaree Kuer with tihj 
plaintiff. Musammat Ramsumatee wafi ftm 
son's daughter of Johnti Singh, the elder 
brother of Maniar Singh. On the 19th 
August 1897 an ex parte decree was ob- 
tained on foot of the mortgage above 
mentioned and the properties mortgaged 
brought to sale and purchased in the 
name oj Jagarnath Sahi. On the 16th 
November 1898 Dhanpat Singh, the 



Patna BAIJNATH BAI v. MANGLA PBASAD HABAYAN SAHI (Sen, J.) 1926 



next reversioner instituted a suit being 
Suit No. HO of 1898 challenging the, 
mortgage in favour of Jagarnath Singh 
and all proceedings based thereon. This 
suit was compromised and the result was 
that on the 22nd August 1889 an ekrar- 
Ng|ma (Ex. 11) was executed whereby 
Jagarnath Sain relinquished his claim to 
12 annas of tauzi 0. S. 2345 *ad 2346 and 
accepted a third share'of the estate subject; 
to all debts and liabilities of Dhuna Singh. 
Bamdularee also took one-third and 
Dhanpat Singh, the next reversioner, took 
the remaining one- third share. On tha 
24th September 1899 Jagarnath sold his 
entire interest by kobala (Ex. 1), to 
plaintiff for a consideration, it is alleged, 
of Bs. 3,500. Hence the plaintiff claims 
to have become entitled to the shares in 
the mauzas claimed in the suit. 

Then came another set of transactions 
which brings us to the immediate cause of 
the plaintiff's suit. The plaintiff alleges 
that on the 18th September 1909 he and 
the then presumptive heir Dhanpat Singh 
borrowed a sum of Bs. 1,995 from Beohan 
'Sahi, father of defendant No. 9, and Basist 
Sahi, defendant No. 10, and executed a 
serpeahgi bond in respect of the tauzi Nos. 
compromised within the estate of Dhuna 
Singh in favour of Beohan and Basist 
Narain. it is said that out of the sum of 
Bs. 1,995 the plaintiff got Bs. 595 only 
and Basist Narain the balance of Bs.1,400. 
Thereafter Dhanpat Singh, the presump- 
tive reversioner, died and his son Bam- 
pariohan Singh cam a into possession of all 
his estate. He applied for mutation of his 
name before the Collector, the application 
was opposed by the actual reversioners of 
Dhuna Singh who are the defendants first 
party in the suit, (for by that time 
Mb. Banadularee had died and succession 
had opened to the reversioners)* On the 
28th November 1918. it is alleged by the 
plaintiff, a collusive and fraudulent 
ekrarnama was entered into between 
Bamparicban^lngh and the defendants 
first party, whereby the defendants first 
3p*rty got a portion of the zerpeshgi pro- 
perty, and on the strength thereof, on the 
14th March 1919 oolluaively got the 
entire amount of zerpeshgi, that is t 
Bs. 1,995 deposited in Court in the name 
of the creditors, that is, the defendants 
third party, without the knowledge of 
the plaintiff, and defendants third party 
collug ively withdrew the said bond money 
rom the Court and gave up possession of 



the zerpeshgi property to them. Hence 
h the plaintiff was denied the opportunity 
of depositing his proportionate share of 
the debt. As a result the defendants first 
party got possession of the entire zer- 
peshgi property and are still in possession 
thereof. On the facts above mentioned 
the plaintiff ^prayed for a declaration that 
he was entitled to get possession of his 
share of the properties given in zerpeshgi 
on payment of his share of the debt and for 
a decree for a redemption and possession 
in his favour. The defendants first party, 
the present reversioners, were the con- 
testing defendants. They assailed the 
mortgage (Ex. 8) as unsupported by any 
legal necessity and the transactions en- 
tered into under Ex. 8, Ex. 11 and Ex. 1 
as being void and of no effect as they 
were alleged to be parts of a device to 
deprive the reversioners of their just 
right and to divide up the estate bet- 
ween the limited owner Bamdularee and 
the presumptive owner Dhanpafc Singh. 
They alleged that Jagarnath was a mere 
farzidar of Bamdularee and uo interest 
passed under the ekrarnama (Ex. 11) to 
Jagarnath and consequently none passed, 
to the plaintiff under the sale deed 
(Ex. 1). As regards the zerpeshgi deed 
dated the 18th September 1909, their 
case was that it was really a transaction 
entered into by Bamdularee in the name 
of the plaintiff and Dhanpafc Singh for 
the purpose of paying up the debts of 
Dhuna Singh due to Gopal Sahi and 
others; that'they were just debts of the 
last male holder and, therefore, binding 
on the reversioners and on the estate ; 
that the allegation of the plaintiff that 
a portion of the zerpeshgi money was 
due from him was utterly false ; that 
upon the death of Dhanpat his son Bam- 
pariohan realised that the estate had 
passed to the defendant first party, the 
present reversioners, and he thereupon saw 
the necessity of executing the ekrarnama 
dated the 28th November 1918 to dis- 
charge the aforesaid debt ; that the defen- 
dants first party have as such rever- 
sioners paid off the zerpashgi debts and 
secured possession of the property to 
which they were justly entitled and that 
the plaintiff's claim to redemption and 
possession should be dismissed. 

Two main points of law have been pnt 
forward before us. First, whether the 
expenses of marriage of Bamsumaree Kuer 
could come within $he description of'legah 



1926 BAJJKATH BAI v. MANGLA PRASAD NABATAN SAHI (Son, J.) Patna 3 



tieoeasity, and consequently whether the 
mortgage (Ex. 8) or any rights thereunder 
could be deemed to he valid beyond the 
lifetime of the limited owner. Secondly, 
did the ekrarnama Ex. (11) pass a valid 
title to Jagarnath Singh, or was it invalid 
and of no effeot ? Was it a mere device 
by the limited owner to defeat; the right 
-of the reversioners ? 

As a question of fact it is now beyond all 
dispute that the amount of Bs. 1,000 which 
was raised upon the mortgage (Ex. 8) was 
Actually employed on the marriage ex- 
penses of Mt. Batnsumaree Kuer. What 
is disputed is that there was any duty 
cast upon the limited owner Mt. Bam- 
dularee to defray the marriage expenses of 
Bamsumaree Kuer out of the estate in 
her hands. It is urged that the duty of 
marrying Mt. Bamsumaree lay on Jhpnti 
Singh or, in the last'instance, upon Dhuna 
Singh, the last male holder. It is also 
urged that directly the estate passed by 
inheritance to Mt. Bamdularee Kuer it 
ceased to be bound to pay the nrarriage 
expenses of Jhonfci's son's daughter. This 
view' appears to me clearly untenable, 
The true principle, as laid down in the 
Shastras, is "that where a person takes a 
property, either by inhsritance or sur- 
vivorship he is legally bound to maintain 
those whose maintenance was & charge 
upon it in the hands of the last holder, 
(see Mayne, Art. 453). A female heir is 
under exactly the same obligation to 
maintain the members of a family as male 
heir would have been by virtue of suc- 
ceeding to the same estate. The obliga- 
tion extends even to the King when he 
takes the estate by escheat or by forfei- 
ture". (See Mayne, Art. 458). In fact, 
bhe duty of the person who inherits is to 
provide for the maintenance, education, 
marriages,, sradhs and other usual religi- 
oup expenses of the co- parceners and of 
such members of their family as they are, 
or were, when alive, legally or morally 
bound to maintain. Now, Bamsumaree 
Kuer would easily come within the des- 
cription of such members as were depen- 
dent on the male co-parcener when they 
were alive. In this. view it appears that 
the mortgage (Ex. 8) was for legal neces- 
sity and the mortgagee-decree-holder got 
a valid right and title to the properties 
purchased by him at the execution sale. 

The -next question relating to the vali- 



dity or otherwise of the ekraraama 
(Ex. H) calls for a somewhat detailed in- 
vestigation. The Munsif held 'that the 
ekrarnama was not supportable on the 
ground of alienation by Bamdula'ree for 
legal necessity nor was it supportable on 
the doctrine of surrender or renunciation. 
He further held that Dhanpat Singh, the 
presumptive* reversioner, had no right or 
interest in praesenti in the property 
which Bamdularee held for life until it 
vested in him on her death should he sur- 
vive her. He had no substantial claim 
on which to litigate with her at the time 
and that, therefore, the ekrarnama which 
purported to compromise the matters in 
dispute and difference between the parties 
to that suit could not be held to be legally 
valid. On this ground he held that the 
plaintiff who derived his title from Jagar- 
nath on foot of the said ekrarnama could 
not recover possession by redemptioa of 
any portion of the estate as against the re* 
versioners. He accordingly dismissed tha 
suit. On appeal the learned Subordinate 
Judge held that the plaintiff's vendor 
Jagarnath had derived a good title under' 
the mortgage ; that ha could not be blamed 
for suing on it when the mortg.ige money 
was not paid ; that bhe ekrarnama whera- 
by Jagarnath relinquished whaLhd had 
purchased under the decree and took what 
was given to him as one-third of the estate 
plus the encumbrance thereon was good 
and valid so far as Jagarnath was concern- 
ed and it conferred a title on him. With 
regard to the other parties to the ekrar- 
nama he observes : "Whether it operated 
as surrender or alienation on behalf of the 
lady in favour of Dhanpat is a different 
question with which we are not concerned 
in the present suit." Upon these findings 
he proceeded to hold that the plaintiff bad 
a right ta redeem the zarpeshgi which 
Dhanpat executed in favour of the defend- 
ant third party and he allowed the appeal. 

It has baan urged before'us that a dis- 
position by compromise such as that 
effected by the ekrarnama (Ex. 11) is per- 
fectly valid as the entire estate- was then 
in the hands of Mt. Bamdularae, and that 
although a limited owner, she was still 
the manager and as such manager was 
quite competent to dispose of the estate 
to the best of her discretion. The subject 
of the power of a limited owner to deal 
with thp estate of the last male holder as 
against the rights of the revertiooai' 



4 Patna B.UJNATH RAI v. 

dealt with very fully in the case of 
Bangasami Goundan v. Nachiappa Gown* 
den (1). The Judicial Committee in that 
case observed : 

"This raises a consideration of the 
whole subject of the power of a Hindu 
widow over an estate which belonged to 
her husband to which she has succeeded 
either immediately on the death of her 
husband, or as heir on the death of her 
own childless son, her husband being 
already dead. This subject has been 
dealt with in many cases which are too 
numerous to cite individually; it has 
given rie to different currents of judicial 
opinion, and, as in this case and some 
others, to actual difference in judicial 
determination. * * * 

It has often been noticed before, but it 
is worth while to repeat, that the rights 
of a Hindu widow in her lafce husband's 
estate are not aptly represented by any 
of the terms of English Law applicable to 
what mightseem analogous circumstance?, 
Phrased in English law terms, her estate 
ie neither a fee nor an estate for life, nor 
an estate tail. Accordingly one must 
not, in judging of the question, become 
entangled in western notions of what a 
holder of one or other of these estates 
might do. On the other hand, what a 
Hindu widow may do has often been 
authoritatively settled. Here arises that 
distinction which as Seshagiri Ayyar, J., 
most justly observed in the present case, 
will, if not kept clearly in view, inevitably 
lead to confusing the distinction between 
the power of surrender or renunciation 
which is the first head of the subject and 
the power of alienation for certain specific 
purposes, which is the second. 

3Po consider first the power of surrender. 
Twfoundation of the doctrine has been 
sought in certain texts of the Smritis. It 
is unneoessaiy to quote them. They will 
be found in the opinions of the learned 
Judges in some of the cases to be cited. 
But in any case it is settled by long 
practice and confirmed by decision that 
a Hindu widow can renounce in favour of 
the nearest reversioner, if there be only 
one, or of all the reversioners nearest in 
degree, if more than one at the moment. 
That is to say, she can, so to epeak, by 

(1) [1919] 42 Mad. 528=46 I.A.^T2=26 M L.T. 
586 M.L.J, 498=17 A.L.J. 586=29 O.L. 
J. 589=^21 Bom. L.R. 640=280. W.N. 777 
=(1919) M. W.N. 262=50 1.^.498=10 
L. W. 105 (P.O.). 



NARAYAN SAH[ (Sen, JJ 1929 

voluntary act operate her own death/* 
(Pages 531 and 532). 

At page 536 their Lordships observed r 
"The result of the consideration of the 
decided cases may he summarized thus : 

(1) An alienation by a widow of her de- 
ceased husbands estate held by her may be 
validated if it can be shown to be a 
surrender of her whole interest in the 
whole estate in favour of the nearest 
reversioner or reversioners at the time of 
the alienation. In such circumstances 
the question of necessity does not fall to 
be considered, But the surrender musfc 
be a bona fide surrender, not a device to- 
divide the estate with 'the reversioner. 

(2) When the alienation of the whole or 
part of the estate is to be supported on 
the ground of necessity, then, if suob 
necessity is not proved aliunde and the- 
alienee does nob prove inquiry on his part 
and honest belief in the necessity, the- 
consent of such reversioners as migbt 
fairly be expected to be interested to 
quarrel with the transaction will he held 
to afford a presumptive proof which, if 
nob rebuUed by contrary proof, will vali- 
date the transaction as a right and proper 
one. These propositions are substantially 
the same as those laid down by Jenkins, 
C. J., and Mookerjee, J., in the case of 
Debi*rosad v. Gopal Bhagat (2). 

Tb0<question to be considered, therefore* 
is whether the ekrarnama in question can 
be supported ou either of the principles 
above laid down. There can ba no valid 
contention in this case that the ekrar- 
nama is supportable on the doctrine of 
legal necessity. On the finding that the 
mortgage deed was for legal necessity the 
sale of 12 annas in favour of Jagarnath 
of Tauzi Nos. 2345 and 2346 may be con- 
sidered to be valid and binding. But 
thereafter we find that Dhanpat, the 
presumptive reversioner institutes a suit 
against Musammafc Bamdulareeand Jagar- 
nath for a declaration that the mortgage 
was not for legal necessity and that 
therefore the sale was not; binding. It was 
this suit which was purported to be com- 
promised by the ekrarnama (Ex. 11) and 
by virtue of that ekrarnama each of the 
three parties to the euit got a thftd share 
in the whole estate. The transaction has 
to be looked into from different points of 
view. Firstly, had Dhanpat at thatiime 
any riftht or interest in the property in 

(2) [1913J 40 Oai. 721=17 C.W.N. 701-19 i.C, 
278=^17 O.L.J. 499 (F.B.). 



1926 



PERSHAD TEWARI v. EMPEROR 



Patn* 



regard to whioh he instituted the suit ? 
True he was entitled as presumptive re* 
versioner, to institute a suit for a declara- 
tion, but was he under any circumstances 
entitled to a share in the property ? The 
interest of a Hindu reversioner has been 
defined as spes successions, that is, a mere 
possibility of succession. Such a possibility 
gives no interest to the reveraionery heir 
in the estate of the deceased present, or 
future, vested or contingent. This prin- 
ciple is supported by various rulings 
among whioh may be mentioned the case 
of Amrit Narayan Singh v. Qaya Singh 
{&) ; M usammat Bhagwati Kuer v Jaydam 
Sahay (4). On this principle it has also 
been laid down that,'an alienation by way 
of compromise 'entered into between a 
limited owner and person who had no 
bona fide claim to the property at the 
time of the compromise is not binding on 
the reversioners, Anud Narain Singh v. 
Mahabir Prasad Singh (5). Therefore it 
is clear that the ekrarnama in question 
offends the principle laid down in these 
rulings on account of the fact that it pur 
ports to give Dhanpat Singh, who had no 
interest in proesenti at the moment a 
third share in the whole estate which he 
was clearly not entitled to. 

Secondly, looking at it from the point 
of view of the limited owner, Musummat 
Bamdulari Kuer, the question thai has to 
be considered is whether-she purported to 
efface herself completely and to operate 
her own death as it were by relinquishing 
the entire estate and consequently acoe* 
lerating the interest of the consenting heir 
This she clearly did not do, for she pur- 
ported to take under the ekrarnama one- 
third of the estate. It is urged before us 
that this share in the estate was given to 
her in lieu of her maintenance. Tt is 
doubtful. if she could do so, but the matter 
does not arise at all inasmuch as there is 
no evidence on the record, nor-doas it 
appear to have been contended at any 
stage of tha proceedings that the share 
that she took was-by way of her mainten- 
ance. On this ground it appears to me to 
be quite clear that the ekrarnama is 



~(3) [mS] 45 Oal. 590=45 I. A. 35=23 

142=32 O.W.N. 409=27 O.L.J. 296=84 
M.LJ. 298=4 *>.L.W. 221=16 A.L.J. 265 
=(1918)M.W.N.306=7 L.W. 581=44 1.0, 
408=20 Bom, L.B. 646 (P. 0.) 

44) [1921] 6 P. L. J. 604=^2 I. 0. 988=2 

P. L. T. 471. 

45) [1917] 8 P.LJ, 88=s42 1.0. 9fc=3 P.L.W. 

295. 



illegal and invalid as against the right of 
the actual reversioners. The learned Sub- 
ordinate Judge seems to think that it is 
not necessary to consider whether the 
ekrarnama operar ted as surrender or alie- 
nation on Behalf of the lady in favour of 
Dhanpat, but that it is sufficient to con- 
sider as to whether Jagarnath got a valid 
title under it. Such a piecemeal considera- 
tion of the ekrarnama is wholly un- 
warranted. It is either valid or invalid 
and if it be invalid, it must; he held to be 
invalid in respect of all the parties. That 
being so, the conclusion is irresistible 
that Jagarnath never got a valid title 
under the ekrarnama and that therefore 
the plaintiff is not entitled to any relief. 

This decision will nofc in any way pre- 
judice such rights as the plaintiff or 
his vendor Jagarnath might have in 
respect of Tauzi Nos. 2345 and 2346 
which Jagarnafch purchased at auction 
in execution of his mortgage decree. 

The appeal must therefore ho allowed 
with costs. The judgment and decree of 
the learned Subordinate Judge musfc ha 
reversed and the judgment and decreo 
of the learned Munsif restored. 

Adami, J.- I agree. 

Appeal allowed. 



# A. I. R.1926 Patna 5 

MULLIOK AND JWALA PRASAD JJ. 

Pershad Tewari and others Appellants, 
v. 

Emperoj Respondent. 

Criminal Appeal No. 68 of 1925, deci- 
ded on 4th June 1925, from the dfafcjsion 
of the Sessions Judge, Saran, ""^Nkted 
25th March, 1925. 

# (a) Criminal trial Sessions trial Defence 
having a counter case should (jive evidence and 
should not rely on the discrepancies In prosecu- 
tion evidence. 

It is advisable that when persons who are 
accused of serious charges in the -Sessions Court 
have a oountsr case and have also to give -some 
substantive evidence in support of if, they should 
produce that evidence and not rely on the chance 
of finding discrepancies and loopholes in the 
prosecution evidence. [P. 6, Col, 9*] 

* (6) Grim. Pro. Code' 8. 210 Prosecution not 
producing all material witnesses Committing 
Magistrate should call them himself. 

It is not sufficient for committing Magistrates 
to say jhat a prima facia case has been made out 



6 Patna 



PERSHAD TEWARI v. EMPEROE 



1926- 



dCnd thus to relieve themselves of farther res- 
ponsibility. If the prosecution did not send up 
all the material witnesses it is the committing 
Magistrate's duty to examine them himself in 
order to determine whhh side was speaking the 
trutja. [P 8, Col. a] 

(c) Criminal trial Prosecution case not 
proved AccusecTxfayld be acquitted. 

Whdre the prosecution fails to prove its case 
as laid, the accused are entitled to acquittal. 

8. P. Varma and B. P. Jamuar for 
Appellants. 
Assistant Oovt. Advocate for the Grown. 

Mullick, J. About 6 A.M. on the 
21st November last Ram Bod ban in the 
course of a quarrel in his village received 
an injury on the head from the result of 
which he died at 2 o'clock on that night 
in the hospital at Ghapra. Within 4 
hours of the assault his son Awadh- 
Bihari lodged an information before the 
Sub-Inspector of Mirzapur thana which 
is about 7 miles away stating that early 
in the morning a buffalo, belonging to 
the appellant Kuldip had trespassed into 
the mustard field of his father and that 
his father had seized the buffalo for the 
purpose of impounding it. Kuldip came 
,and protested and there was then a 
struggle. The appellant Ram Prasad, 
who is the brother, and the appellant 
Nathuni, who is the nephew of Kuldip, 
were standing by with lathis and came 
to the assistance of Kuldip. The result 
was that Ram JBodhan was struck by 
Ram Prasad and Nathuni on the head 5 
or 7 times. Awadh Bihari who was in his 
house 63 paces off, came up running and 
Kuldip gave him a.thrust with the spear- 
bead of his lathi in the forearm. There- 
upon the appellants went home with the 
buffalo and Ram Bod ban was carried 
home by his relatives and by prosecution 
witness Ram Parsan Ojha. That wa* 
the Story put forward by Awadh Bihari 
in his first information to the police. 

At or about tho same time that Awadh 
Bihari lodged his information, the ap- 
pellants Ramprasad and Nathuni also 
appeared at the thana and laid a counter 
information to the effect that at 6 A.M. 
that morning the wife of Ram Prasad had 
had a quarrel with the wife of Ram 
Bodhan in a rahar field to the east of 
Ham Prasad 's house and that Ram 
Bodhan, Awadh Bihari and Awadh- 
Bihari'a brothers Mahadeo and Sit a Ram, 
and Ram Bodhan 's brother Jeo Bodhan 
baci come to the place with lathis and 
that, when Bam Prasad and Nafehuni 



interfered to protect Ram Prasad's wife* 
they assaulted Ram Prasad most severely. 
Nathuni was also alleged to have been 
assaulted at the same time. Strangely, 
how Ram Bodban and Awadh Bihari . 
came by their injuries was neither asked 
nor explained. 

After recording tbe two informations,, 
the Sub-Inspector sent Ram Bodhan, who* 
had been brought on a stretcher by 
Awadh Bihari, to the Chapra hospital. 
He also sent Awadh Bihari, Ram Prasad 
and Nathuni to the same place. The- 
Sub-Inspector arrived at the place of 
occurrence on the evening of the same> 
day, On tho following morning he began* 
an investigation, but it does nob appear 
that he did anything substantial. At 
10 a.m. he received news that Ranx 
Bodhan had died in hospital the previous- 
nighfr. But although the case had thu 
assumed a graver aspect he did not con- 
sider it his duty to make any serious- 
investigation and he left the village that 
night. On the 23rd or 24th he did not- 
go to the village at all and I must express 
my surprise that in a case of this descrip* 
tion where there was a complaint and a 
counter-complaint and where everything 
depended upon a speedy investigation for 
ascertaining which side was telling the 
truth, the police took no action whatever 
for two days. However on the 25th 
November, the Sub-Inspector returned 
and took up the investigation in earnest. 
In the result he decided upon sending up 
the appellants for trial and upon keeping 
the counter-case pending till the disposal 
of this case. 

Now the case must be decided -upon 
the evidence adduced for the prosecution. 
Tbe defence have called no evidence and 
have as usual run a grave risk in not doing 
so; but it 303ms hopeless to impress upon 
those who are accused of serious charges 
in the Sessions Gourt, that it is neces- 
sary whdn they have a counter-case to 
give some substantive evidence in sup- 
port of it and that it is generally most 
dangerous for them to rely on the chance 
of finding discrepancies and loopholes 
in the prosecution evidence. Hawever, 
it is fortunate for the appellants \n this 
case that there are* circumstances in 
the prosecution evidence which induce 
us to hold that the real assault took 
place not under a mohua tree near 
the mustard field but near the well to> 



1926 



PEBSHAD TEWABI v. BMPBBOB (Mullick, J.) 



Patna 7 



the east of Bam Prasad's house as al- 
leged by the defence. 

The prosecution witnesses are first of all 
a man named Ban si. He states that he was 
going out for a necessary purpose early in 
the morning and he saw the assault. On 
the morning of the 22nd when the Sub- 
Inspector took up the investigation he de- 
clined to make any statement whatsoever 
though pressed to do so. He did not show 
the Sub-Inspector the mohua tree where 
two drops of blood were found on the 25th 
November by the Sub-Inspector. It is 
strongly contended on behalf of the prose- 
cution that the presence of these two blood 
stains at that place conclusively estab- 
lishes the truth of the prosecution story. 
But the unfortunate part of it is that Bansi 
did not at the earliest moment disclose 
this important piece of evidence before the 
pDlice. On the contrary fche Sub-Inspector 
states that Bansi and Awadh Bihari's 
brother Mahadeoand the appellant Euldip 
went with the Sub-Inspector to the well 
and there pointed out large patches of 
blood on the ground and that they allowed 
the Sub-Inspecfcor to take it as admitted 
that tjie well was the place where the 
fatal assault was committed. In these 
circumstances it is impossible to accept 
Bansi's present statement that nothing 
took place at the well and that Bam 
Bodhan and Awadh Bihari received their 
injuries near the mohua tree. The distance 
between the two places is not less than 
97 paces and there can be no ground for 
contending that the places were so close 
that the discrepancy was not considered 
by Bansi to be material. 

" "The next witness for the prosecution is 
Bam Parsan Ojha. This witness states 
that he also was going out for a necessary 
purpose and when he was at a distance of 
15 or IGlag'gasfrom Rama Bodhan he saw 
Bam Prasad^and Nathuni striking him 4 
or 5 times on his head with their lathis. 
He says thart Bam Bodhan spun round on 
receiving the first blow and that the other 
blows were delivered after he fell. Ac- 
cording to him Awadh Bihari arrived 
after his father fell and received his in- 
jury because he remonstrated. 

The refraining eyewitness is a Bajput 
named Kali Singh, Now this man states 
that he was'coming from his village which 
is to the north of Nautan to fetch some 
labourers whom he wished to employ. He 
also corroboratea Bam Parsan but it is 



evident that he and the other two wit- 
nesses have attempted in the Sessions 
Court to make a much more definite case 
against Bam Prasad than they did before 
the police. They now stated that they 
are confident that Bam Prasad struck the 
fatal blow ; but before the police they 
were not quite clear that Bam Prasad 
struck the fatal blow and the suggestion 
then made was that Nathuni and Bam 
Prasad were responsible jointly for the 
injury from which Bam Bodhan died. 

In the case of Bam Parsan and Kali 
Singh, the same difficulty arises as to the 
occurrence at the well. They ignore all 
knowledge of any assault at that'place and 
it is clear that they cannot be accepted as- 
impartial witnesses who have come for- 
ward to tell the whole truth. Evidence 
has been given that on the 17th November 
Awadh Bihari had impounded two cows 
belonging to Kuldip and that on the 21st 
October Awadh Bihari's brother Sitaram 
had impounded another cow belonging to 
Kuldip. An attempt was made to show 
that the pound keeper was perjuring him- 
self, but I do not think that attempt has 
succeeded. In my opinion the learned 
Judge'was right in accepting che allegation 
that the feelings bet ween the parties had 
been strained for some time and that 
shortly before the occurrence Awadh 
Bihari's family had twice seized Kuldip's 
cattle and impounded them. That, how- 
ever, was not the immediate motive for 
the occurrence of the 21st November, 

The question then is whether we are 
to accept the story told by Bam Prasad 
in the counter-information. It is obvious- 
that there was no delay in putting for- 
ward this story, and, reading the account, 
it seems to me to be a much more na- 
tural one than that told by Awadh 
Behari himself and to be more consistent 
with the circumstances proved in this 
case. The allegation is that 2} years 
ago Bam Praaad was suspected of an 
intrigue with one of the daughters of 
Bam Bodhan in consequence of which he 
had to go away to Calcutta. He had 
returned from Calcutta three months 
before the occurrence, but the old fend 
was still continuing and on the morning 
in question a sudden quarrel broke out 
between the wife of Bam Bodhan and the 
wife of Bam Prasad. I do not think a 
story of this kind would have been easHy 
invented having regard to the fact that the 



8 Patna 



PEBSHAD TEWABI v. EMPEBOB (Mullick, J.) 



1926 



appellants are Brahmins by caste. Awadh 
Bihari himself and the other prosecution 
wit nesses stoutly deny that Awadh Bihari 
had a sister called Sudama and that any 
such intrigue was ever suspected, fie 
maintains that he had two sisters both of 
whom died 8 or 10 years before the occur* 
rence. The concoction of a story of this 
kind requires time and as there was no 
delay at all in going to the police. I think 
on the whole that it furnishes a better 
explanation for the assault than that put 
forward by the prosecution. That being 
so, the question is whether the blood 
patches near the well were the result of a 
fight as alleged by the defence. On this 
point we have the fact that Bam Prasad 
had no less than 11 injuries, 3 of which 
were lacerated wounds. His nose appears 
to have been very severely damaged and 
the other two lacerated wounds must have 
also bled considerably. Nathuni had three 
injuries, one of which was a lacerated 
wound, and although it had been con- 
tended by the Crown that the .above 
injuries were not sufficient to cause copious 
bleeding, I think the evidence establishes 
that the blood marks at the well were due 
to Bam Prasad'a and Nabhuni's injuries. 

On the other hand it is in evidence that 
Bam Prasad died of a fracture of the skull 
and that there was no external wound 
from which any blood could have flowed. 
The only injury on his side from which 
blood could have come was A wadh Bihari's 
which was a trifling one and which certain- 
ly could not have produced the copious 
patches which the Sub- Inspector found 
near the well. On the 25th November 
two small spots of blood under the mahua 
tree were pointed out to the Sub'Inspec- 
tor. They wore about the size of a 4- 
anna bit each and the earth was scraped 
up and sent to the Chemical Examiner 
and the report is that they were caused 
by human blood. But it has to be re- 
membered that on the 22nd November 
when the Sub* Inspector first came to the 
village, Bansi did not point either the 
place or the marks to him and in the cir- 
cumstances the suggestion that the blood 
was subsequently put there for the pur- 
pose of creating evidence should, I think, 
be accepted. Therefore we have now the 
position that while the account given by 
the defence has much to support it, the 
evidence for the prosecution is so deficient 
that it cannot be safely accepted for the 
purpose of convicting the appellants. If 



the prosecution case is substantially true, 
then they have only themselves to thank 
for its failure. 

In this connexion I think it necessary 
to point out that it was the duty of the 
Committing Magistrate to make some in- 
vestigation into the truth of their story 
before he committed the appellants to the 
Sessions Court. It is not sufficient for Com- 
mitting Magistrates to say that a prim a 
facie case has been made out and thus to 
relieve themselves of further responsibi- 
lity. If the police did not send up all the 
material witnesses, it was the Committing 
Magistrate's duty to examine them himself 
in order to determine which side was 
speaking the truth. Here two clear cut 
cases were put forward by the respective 
sides and from the police diaries we find 
that there were apparently independent 
witnesses to support the account given by 
the appellants, and the learned Magistrate 
might with very little trouble have rea- 
ched the conclusion that it was advisable 
to try tho counter-case first and to keep 
the present case pending. If that pro- 
cedure had been adopted, the appellants 
would either have been discharged or com- 
mitted for trial with all the material evi- 
dence at the service of the Sessions Court. 

Therefore, in these circumatances,being 
unable to say that the case put by the 
prosecution is a true account of the man- 
ner in which Bam Bodhan came by his in- 
juries, I think there must be an acquittal. 

The learned Judge has set out the vari- 
ous submissions made to him at great 
length, but he has not met them by an 
adequate discussion of the evidence nor 
referred to the discrepancies between the. 
depositions and the statements before the 
police, nor has he considered the question t 
whether having suppressed a material part 
of the prosecution story the eyewitnesses 
on whom he relies can be trusted in res- 
pect of the assault upon Bam Bodhan. 
He thinks, and evidently the assessors 
also think so, that the assault took place 
in both places. But of this there is no 
evidence at all and we cannot proceed 
upon mere conjecture. 

The result?, therefore, is that < the con* 
victions and the sentences wijl be set 
aside and the appellants will be acquitted 
and set at liberty. 

JwaU Fraud, J. I agree. 

Conviction set aside. 



TAKKI SI>GH v. SATNARAIN MAIURAJ (Macpherson, J.) Patna 9 



A.I. R. 1926 Patna 9 

MtLLEB, 0. J., AND MACPHERSON, J, 

Tarni Singh alias Tomi Singh and 
others Defendants Appellants, 
v. 

Satnarain Maharaj and others Plain- 
tiffs Respondents. 

Appeal No. 1277 of 1922, Decided on 
the 22nd June 1925, from Appellate De- 
cree of District Judge, Monghyr, D/- the 
16th June 1922. 

(a) B. T. Act (1885), S. 5 (5) Tenant whether 
tenure- holder or raiyat Test Is purpose and 
extent of tenancy. 

In determining whether the status of tenant 
under the B.T. Act is that of a tenure-holder or 
a raiyat what has to be considered is (1) the pur- 
pose for which the Und was acquired and (2) the 
extent of the tenancy 45 Cal. 805. Foil 

Where -the area exceeds 100 bighas there i 8 
under S. 5 (5) of the Act a presumption until the 
contrary is proved that the tenancy is a tenure. 
But if the first criterion is established the second 
does not arise, while if the first is not established 
the second is conclusive, [P. 11, Col. 1.] 

(6) Civ. Pro. Code, S. 100 Question whether 

tenant Is temire- holder or raiyat under B. T. Act 

ultimately depends on question of fact. 

. Though a substantial question of law may and 

.generally does, arise in 'letermiaiug whether a 

tenant is a raiyat or a tenure holder, the point 

depends ultimately on questions of facts. 46 Cal. 

90 (P. C.) t Foil. [P. 11. Col. 1.] 

In second appeal the High Court is not enti- 
tled to go behind the findings of fact of the lower 
Appellate Court unless such findings result from 
the misconstruction of a document of -title or the 
jmisapplication of law or procedure, (19 0. W. N. 
270.JMJ,), Such findings cannot be assailed how- 
ever gross and inexcusable the error therein if 
the lower Appellate Court had before it evidence 
proper for its consideration in support of its find- 
tag. 18 Cal. 23 (P. C.). Foil. [P. 11, Col. 1.] 

(c) Landlord and Tenant Expression "culti- 
vate and get cultivated " does not necessarily In- 
dicate a tenure-holder rather than a raiyat. 

A patta kaidkarar . executed by the darmus- 
tajirs in respect of 275 bighas for a period of seven 
years provided inter alia "it behoves that you 
cultivate and get cultivated the land in the said 
village. 1 ' 

Held: that the expression was consistent with 
the status of the grantee being that either of a 
rayat or of a tenure- holder. 45 Cal. 805 (P. C.) ; 
46 Cal. 90 (P. C.), Dist. 

(d) B. T. Act (1885), S. 5 (5) Tenant whether 
-tenure hol&er or raiyat Reclamation and culti- 
vation by^tenint by his own plough is Inconsistent 
with tenant being tenure-holder only. 

Though reclamation of the whole jot by the 
settlement- holders and cultivation by their 
own -ploughs may not be absolutely inconsistent 
with a tenure, it is entirely contrary to experi- 
ence in Bengal in oases where the tenancy is a 
tenure or the tenant proposes to settle raiyata 



upon the land and become a rent- receiver, more 
especially where the settlement- holder belongs 
to an agricultural caste or tribe. [P 12 C 1] 

(e) B. T. Act (1885), S. 85 (2) Lease registered 
contrary to 8. 85 (U) through misapprehension of 
registering officer JVo collusion betueen lessor 
and lessee to evade the provision Lease Is en- 
operative beyond nine years. 

Where there is no evidence that lessor and 
lessee conspired by false or equivocal recitals to 
evade the provisions of B. 85 (2) the lease that 
was admitted to registration contrary to the 
provisions of section 85 (2) through a mis* 
conception of the registering officer does not 
affeot the property demised, at any rate beyond 
the period of nine years. [P. 13, Col. 2] 

S. M. MullickB.ua N. N. Smliator 
Appellants. 

Sultan Ahmad and Jayannath Prasad 
for Respondents. 

Macpherscm, J. This appeal has 
been preferred by the defendants first 
party from the decree of the District 
Judge of Monghyr in which he affirmed 
the decree of the Munsif for the eject- 
ment of the appellants and of the defen- 
dants second party from the land in suit. 

The land in suit is a reputed area of 
137i bighas which, at the time of the 
cadastral survey was found to be actually 
157 bighas, 2 kathas. In the record-of- 
rights finally published in 1908 the ad- 
optive mother of plaintiff No. 1 and the 
plaintiff No. 2 who is his natural mother 
as guardians of their respective minor 
sons, were entered in the record-of-rights 
as "jotdar istimrari lekin mukarrari 
nahi" signifying "permanent tenant but 
not at a fixed rent," the defendants first 
party, now appellants, as "dar jotdar 
istimrari lekin mukarari nahi" signify- 
ing permanent under-tenant bub not at a 
fixed rent," and the defendants second 
party as occupancy raiyats under the 
darjotdar. The defendants first party 
were also entered as in cultivating pos- 
session of a portion of the area ancl as 
receiving Rs. tfoO as rent from defendants 
second party. 

The plaintiffs sued for adjudication that 
the plaintiff No. 1 i* occupancy raiyat of 
the land in suit; the defendants first party 
are dar-rayat of the land and not "da* 
jotdar istimrari lekin mukarrari na/u"as 
shown in the record-of-righfcs, and the 
defendants second party have no concern 
with the land, for khas possession thereof 



10 Patna 



TARNI SINGH v. SATNARAIN MAHARAJ (fifaopberson, J.) 



1926- 



from the defendants and for mesne pro- 
fits from Aain 1327. 

The case cm,, behalf of the plaintiffs 
was briefly as follows : 

The land in suit was a jot held by 
Hibharan Singh as an occupancy-raiyat. 
On the 29fcb November 1893, the jot was 
sold in execution of a rent decree and 
purchased by Nand Maharaj, the right 
sold being shown as " hak'tnokabzat." On 
the 25th October 1897, Nand Maharaj 
granted a dar-jofc of the jot purchased by 
him for the years 13051311 at an an- 
nual rent of Bs. 400 to Khanro Singh, 
father of Defendants No*. 1 to 3, This 
grant is described as thika pabta and the 
grantee as thikadar and as mustajir ; and 
it is set oufc that after expiry of the term 
of the thika patfca fche thikadar shall not 
retain possession over the lands in suit 
without executing a newjpafcta and will 
give up possession after the expiry of the 
term or if the grantor gells the land. On 
the expiry of that patta a new patta, 
Ex. D.-i, for the period 1312 1320 was 
executed on the 5fch February 1901, by 
Mfc, Mini, widow of Jaisa Maharaj, for 
herself and as guardian of Plaintiff No. 1, 
and by Plaintiff No. 2 who is the widow 
of Nand Maharaj for herself and as guar- 
dian of Durgapat; Maharaj, her son, now 
deceased. Ifc may be here observe! that 
Jaiaa Maharaj and Nand Maharaj were 
brothers, and Jaiso adopted Plaintiff 
No, l.fchat Plaintiff No. 1 is the sole 
surviving member of the joint family 
and that Plaintiff No. 2 has been joined 
in this litigation merely to avoid future 
dispute, The patta Ex. D-l differs con- 
siderably from the patfca of 1897. The 
executants set out therein that they 

have executed a patta conferring a 
darkarindgi jot in respect of the land de- 
miaed for a term of nine years at an an- 
nual rental of Bs, 400," and that " objec- 
tion on the score, of (loas through) inun- 
dation, drought, hail and storm will be 
the concern of you the raiyat," and make 
provision for renewal which will be 
quoted and discussed later. The grantee 
is referred to as " jotdar " and in particu- 
lar there is no mention of thika, thikadar, 
0* mustajir. 

In the reoord-of-righfcs of 1908 fche 
lessee is shown as Khanro 'Singh and 
Nandlal Singh of whom the former is the 
father of Defendants Nos. 1 to 3 and the 
latter (His brother) is the father of defect* 
dants Nog. 4 and 5. These five defendant 



constitute the defendants first party 
though plaintiffs do not admit that De- 
fendants Nos. 4 and 5 have any concern 
with the land. 

Towards the end of the settlement 
operations the Banaili Baj, which besides 
being proprietor of the village had then 
become the immediate landlord of the 
plaintiffs' tenancy, applied under S. 105 
of fche Bengal Tenancy Act for settlement? 
of a fair and equitable rent in respect of 
it, the tenants having been as will be re* 
membered recorded as " jotdar istimrari 
lekin mukarrari nahi" The tenant 
thereupon claimed under S. 105-A to ber 
an occupancy raiyat and that claim was 
sustained. That decision, however, does 
not bind either defendants first party 
or defendants second party as they were 
not parties to the litigation. 

After fche expiry of fche lease Ex. D*l 
in 1913 fche plaintiffs sued fche defendants 
for recovery of possession of fche leased 
land and for mesne profits. Ifc was held 
in appeal fchafc as plaintiffs had realized 
some rent for 1321, the-year after the ex- 
piry of fche period of fchekabuliyafc, notice^ 
under 3. 49 of fche Bengal Tenancy Act 
was necessary before fche defendants could, 
be ejecfeed. The suit was accordingly 
dismissed. The plaintiffs thereafter is- 
sued nofcice upon fche defendants first- 
parfcy under S. 49 which was served in 
1325, calling upon fchem to relinquish 
fche land from 1327, and as fche defen- 
dants first parby failed to comply there- 
with plaintiffs insfcifcufced fche suit for 
ejectment out of which this appeal has 
arisen. 

The suit was contested by Defendant^ 
Nos. 1 fco 5. They contended fchafc they* 
were in fact occupancy raiyafcs and that- 
in any case fche plaintiffs could not in 
view of fche pafcfca of 1904 ejecb them. 

The Munsif decreed the suifc* holding 
thab Hibharan Singh and therefore the- 
purchaser of his interest, Nand Maharaj, 
who is now represented by fche 'Plaintiff 
No. 1 was a raiyafc, and fchafc fche defen- 
dants first parfcy have neither occupancy 
right nor any permanent right. On ap- 
peal the District; Judge affirmed tjjie deci- 
sion holding thafc fche evidence on record' 
established thafc fche tenancy of fchtf Plain- 
tiff No. 1 is raiyabi and fchafc the defen- 
dants have no permanent tenancy over 
fche land in *suifc and are liable to 'be 
ejected. . 

In second appeal the decision **of the* 



1926 TABNI SINGH v. SATNARAIN MAHARAJ (Macpherson, J.) 



Pfttna 11 



lower appellate Court; is assailed on the 
following three grounds : 

(1) The plaintiff No, 1 has wrongly been 
held to be o'f raiyati status and entitled 
on that ground to eject the appellants. 

(2) Even if the land is the occupancy 
holding of the plaintiff No. 1 the defen- 
dants first party are not, in view of the 
terms of the lease of 1904, liable to eject- 
ment since that lease confers upon them 
a permanent tenancy. 

(3) The suit was nob within the pecu- 
niary jurisdiction of the Munsif and his 
decision being void for want of jurisdic- 
tion, there should bo a remand of the suit 
to a competent Court for trial. 

Now as laid down in Debendra v. Bibhu- 
dendra (I), in determining whether the 
status of a tenant under the Bengal 
Tenancy Act is that of a tenure-holder or 
a raiyat, what has to be considered is : 
(1) the purpose for which the land was ac- 
quired, and (2) the extent of tho tenancy. 

In the present case the area exceeds 100 
fcjighas and therefore there is under sec- 
tion 5 (5) of the Bengal Tenancy Act a 
presumption, until the contrary is proved, 
that the tenancy is a tenure. But if the 
first criterion is established the second 
does not arise, while if the first is not 
established the second is conclusive. 

The finding of the final Court of fact is 
that the presumptions in favour of the 
defendants under section 103-B and sec- 
tion 5 (5) of the Bengal Tenancy Act have 
been rebutted by the evidence adduced by 
the plaintiffs and though a substantial 
question of law may, and generally does, 
arise in determining whether a tenant is 
a^ raiyat or a tenure-holder, the point, 
as indicated by Lord Sumner in Rajani 
Kant v. The Secretary of State (2), depends 
ultimately on questions of fact. In second 
appeal the High Court is not entitled to 
go behind the findings of fact of the 
lower appellate Court unless such find- 
ings result from the misconstruction of a 
document of title or the misapplication 
of law or procedure (Umi Char an v. 
Midnapur Zamindari Go. (3).) 

On behalf of the appellants it is con- 

(1) [1918 J *45 Oil. 805=r5 I. A. 675 Pat. 
L. W, 1 =27 C. L. J. 648=22 0. W. N. 674= 
16 A.L. J. 522^23 .M. L. T. 384=(1918) 
M. W. N 379=20 Bom. L. R. 743=46 I. C.' 
411=35 M. L. J. 214 (P % C.). 

(9) [1918] .46 Cal. 90=451. A. 190=511.0. 
226=23 0. W. N. 649 (P. 0.). 

(8) [1913J 19 C. W. N. 270=26 I. 0. I82=s20 
C. L. J. 11. 



tended by Mr. M. N. Singh in regard to 
the finding on the question of status, first r 
that it is based on a misconstruction of 
the document of 1876, by which the ten- 
ancy of Hibharan Singh was created, and 
secondly, that there is a misapplication of 
the law inasmuch as the finding that the* 
plaintiff No. 1 is a raiyat is based on evi- 
dence legally insufficient to support it, or 
rather that there is no evidence to sup- 
port the finding. 

Now Ex. B, the document of 1876, is- 
a brief patta kaulkarar (agreement) in 
favour of Tekan Singh and Hibharan 
Singh executed by the darmustajirs in- 
respect of 275 bighas for a period of seven 
years from 1284 at an annual rental o 
Bs. 221. The only relevant provisions 
are : "It behoves that you cultivate and 

Set cultivated the land in the said village 
ot wa abad karke wa karake) and pay the' 
said rent, etc., [literally "It behoves that 
you (by) doing and getting done ploughing 
and cultivation (? reclamation) pay the* 
said rent, etc.,"] and "objection on the 
score of (loss through) inundation, drought 
and calamities of the sky will be your 
concern." The learned District Judge 
held, that the expression "jot wa abad 
karke wa karake" was consistent either 
with the status of a raiyat or the status 
of a tenure-holder. It is now urged that 
taken in conjunction with the area of 
275 bighas [or even with the moiety of 
that area held by each of the two lessees, 
and (as the sale in 1903 of half of the 
area shows) accepted by the landlord as 
a separate tenancy] the word "karake" 
points to the grant of a tenure. In my 
opinion such is not necessarily the case, 
and it is impossible on that word alone 
to hold that a tenure rather than a 
holding is implied, especially when the 
grantees take from a darmustajir. Apart 
f rom.the fact that the words, "jot wa abad" 
would seem in the word ' abad" to imply 
reclamation of the soil in addition to 
cultivation, the lessees and each of them 
in his own moiety might well contem- 
plate cultivation of such an area by their 
(or his) own family or hired servants 
without any idea of settling raiyats upon 
it. Much the same language was indeed 
used in the leases discussed in Debendra 
v. Bibhudendra (1) and in Rajani Kant 
v. The Secretary of State (2), but in those- 
leases there were clear indications 
that a tenure was intended, and it- 



12 Patflfc 



TARNI SINGH v. SATNARAIN MAHABAJ (Macpherson, J.) 1926 



-was so found by the final Court of fact. 
The District Judge has in my judgment 
taken a correct view of the terms of the 
original lease. 

The original lease being inconclusive 
the attendant circumstances may he 
looked at to determine the purpose for 
which the tenancy was created. The 
learned District Judge found that that 
purpose was established by three pieces 
of evidence : (l) the statement of Kamla 
Singh, one of the original settlement- 
h olders, who deposed that originally the 
settlement was a raiyati one ; (2) the de- 
position of Tilak Singh who is a nephew 
of Hibbaran Singh and 71 years of age 
and who stated that the land was jungle 
at the time of the settlement and that 
the settlement-holders got the jungle cut 
.and cultivated the land with their own 
ploughs ; and (3) the mention in the sale 
certificate of 1893 "that Hibbaran Singh 
judgment-debtor, had ' hdk mokabzat ' 

e. occupancy right in the land sold." 

Mr. N. N. Singh strenuously contends 
that the evidence relied upon by the 
District Judge is conclusive as to the 
status of Hibharan Singh and his suc- 
cessor- in-infeerest and could not, especi- 
ally as it is not contemporaneous, nega- 
tive the statutory presumptions arising 
under Ss. 103-B and 5 (5) of the Bengal 
Tenancy Act. It is urged that the opi- 
nion of the witness Kamla Singh is value* 
less especially as the area is so large that 
the reclamation of the land by the 
lessee is not altogether inconsistent with 
an intention to settle raii/ats upon it 
and so is inconclusive, and that "hak mo- 
kabzat" is not "occupancy right" as used 
technically in the Bengal Tenancy Act, 
but is simply a loose expression meaning 
"the right to possession." 

Now the lower appellate Court had 
before it the evidence of Kamla Singh 
which has not been shown to 113, and it 
is therefore impossible to say that he 
ought not to have relied upon it. Again 
though reclamation of the whole jot by 
the settlement-holders and cultivation 
t>y their own ploughs may not be abso- 
lutely inconsistent with a tenure, it is 
entirely contrary to experience in this 
province in oases whore the tenancy is a 
tenure or the tenant proposes to settle 
raiyatz upon the land and become a rent- 
receiver, more especially where the set- 
tl ement-holder belongs to an argicultural 
caste or tribe, It has also* not been 



shown that from 1876 to the date of sale 
in 1893 there were any under-tenants. It 
was only when the ''landlord and stamp- 
vendor/ 1 as Nand Maharaj describes him- 
self, came into possession that sub-leasing 
began. Finally it is not possible to say 
that in the circumstances the terms ''hak 
mokabzat" does not, as the District Judge 
held, denote, the "occupancy right" of the 
Bengal Tenancy Act which had been in 
force for eigh t years at the time of the sale. 

There is no substance in the complaint 
of the learned Advocate that the defend- 
ants' evidence on the subject of status 
had not been considered. The learned 
Judge having referred to the presump- 
tions proceeded to examine the nature of 
the settlement, and as will be seen below 
the patta of 1904 does not throw any 
light on the character of the tenancy of 
Hibharan Singh. 

Findings of fact of the lower appellate 
Court cannot be assailed in second ap- 
peal, however gross and inexcusable the 
error therein if, as Lord Macnaghten said 
in Durya Chaudhiirani v.Jawahir Singh 
Chaudhuri (4), "the lower appellate Court 
had before it evidence proper for its con- 
sideration in support; of its finding." It 
is impossible to say that the learned Dis- 
trict Judge had not before him evidence 
on which a finding of fact could legally 
be based that the presumptions in favour 
of plaintiff No. 1 being a tenure-holder 
were rebutted and that he is in fact a 
raiyat as he claims to be. The first point 
therefore fails. 

It is next urged that even if the plain- 
tiff No. 1 is a raiyat he is not entitled to 
eject the appellants. In support of th*i*a 
contention reliance is placed on a pro- 
vision in the patta of 1904 which run 1 ? 
as follows : "When the terms of the 
patta will expire, you again taking a fresh 
patta from us (the executants) will cul- 
tivate, and if contrary to this provision 
you cultivate, then rent will be realized 
at the rate of Rs. 3 per bigha, the rate 
for adjoining lands, and if you the karin- 
da will all along pay faithfully (? punc- 
tually) the rent fixed under the patta 
then the land shall remain in* your pos- 
session and occupation as before." 
' There are two branches to the argu- 
ment. In the first place reference is made 
to S. 18 'of the Bengal Tenancy Act 

(4) -[1890] 18 Oal. 28=17 LA. 122-5 Sar. 560 
(P. 0.). 



TARNI SINGH v. SATNARAIN MAHARAJ (Maopherson, J.) Patna 1$ 



1926 

and it is urged that it is for Plaintiff No. 
1 to show that he is not " a raiyat at 
fixed rates' 1 who is not precluded by 8. 
&5 of the B. T. Act or any other enact- 
ment from making such a transfer as is 
involved in the provision quoted. The 
plaint, however, sets out that the Plain- 
tiff No, 1 is an oooupanoy raiyat and pre- 
sumably an entry to that effeot was also 
made in the reoord-of-rights under S. 
109 D of the B. T. Act after the decision 
under S. 105 A. The appellants also never 
asserted that their landlord, Plaintiff No. 
1, held his tenancy at fixed rates. Indeed 
the point was never previously taken 
and it is not rmnbioned in the grounds 
of appeal. It therefore cannot be taken 
now. But apart from that the implied 
finding throughout is that the Plain iff 
No. 1 is an occupancy raiyat. 

The main contention, however, is that 
the plaintiff is in some manner estopped 
by the provision quoted from ejecting the 
appellants. In support of it reliance is 
placed upon the Full Bench decision of 
the Calcutta High Court in Chandra 
Kanta, v. Amajad Ali (5) and it is urged 
that as in the lease of 1904 the plaintiff's 
predecessors held themselves out to be 
tenure holders and so S. 85 (2) of the B. 
T. Act was not a bar to the registration 
of the dead of sub-lease, though it pur- 
ports to create a term exceeding nine 
years, the grantor, even if a raiyat, can- 
not now ba parmittel to derogate from 
his own grant and eject the grantee to 
whom he made a permanent grant. This 
argument manifestly lacks foundation 
unless it is found that the lessors of 1901 
held themselves out as having a right 
higher than that of occupancy raiyat. 
The learne t d District Judge was not satis- 
fied that the pardanashin ladies who 
executed the deed were even aware of 
the provision or accepted it. But apart 
from that finding, I am unable to hold 
that the exsoutants of the lease of 1904, 
all professed to have a higher status 
than the status of a raiyat. The period 
of nine ypars is a very common one for a 
sub-lease by a raiyat and less probable 
in a grant of an under-tenancy or a 
raiyati settlement. The word ' raiyat" 
is indeed used in Ex. B, but pnly in the 
stipulation that " objection on the score 
of (loss through) innundation. drought 
(6) (1931) 48 OaL 783-26 0. W. N. 4=32 0, L. J, 
236=61 1. 0. 466 (F.3.) 



hail and storm will be the concern of 
you, the raiyat " which is merely an 
adaptation of the similar provision in the 
patta of 1876. The word "raiyat" has 
here not the usual technical meaning nor 
any special significance, being merely 
equivalent to grantee. Manifestly it 
must be interpreted in conjunction with 
the definite statement in the deed that 
the 'grantors have executed a patta con* 
ferring a darkarindgri jot, the literal 
meaning of which is "a sub-management 
jot." In the course of the document the* 
term " karinda " signifying " agent " or 
"manager," is twice used of the grantee. 
The description in the last sentence of 
the lessee as "jotdar" must also be read 
in the light of that description of the- 
tenancy. Tbe lease is perhaps one which 
migat equally be executed by a raiyat or 
by a tenure-holder, but that is all that' 
can be said in favour of the contention 
on behalf of appellants. Accordingly it 
must be regarded as a sub-lease granted 
by the executants in the capacity which 
they actually occupied. Plaintiff No. 1 
is therefore not estopped from denying; 
that he holds a higher status than that 
of an occupancy raiyat. Ex. D 1 appears 
to have been admitted to registration 
contrary to the provisions of S. 85 (2) 
through a misconception on the part of 
the registering officer, and whether the 
misconception was that the term of the 
sub-lease granted by a raiyat was not 
more than nine years, or was that the 
executants held a tenure, is immaterial. 
There is cartainly no evidence that lessor 
and lessee conspired by false or equivocal 
recitals to evade the provisions of the 
statute. Ex. D-l therefore does not affect 
the property demised, at any rate beyond 
the period of nine years. The first of the 
three cases dealt with in the Full Bench 
decision cited is that which applies to 
the present circumstances and the raiyat 
is entitled to eject the grantee upon giv- 
ing not/ice under S. 49 (2) as has been 
done in the present instance. The second 
point also cannot prevail. 

As to the third point the suit was 
valued at Bs. 1,100 and was instituted in 
the Court of the Munsiff having jurisdic- 
tion to try suits of value not exceeding Bs, 
2,000. Objection to the jurisdiction of the 
Court was taken before the Munsiff .Before 
the District Judge in appeal the objection 
was renewed. But the trial by a Court of a 



14 Patn* 



BAMESHWAB SIKGH v. DCRGA MANDAR (Das, J.). 



1926 



suit; beyond its peouniary jurisdiction is 
not in itself a ground for setting aside 
his order on appeal unless the appellate 
Court is satisfied that the undervalua- 
tion has prejudicially affected the dis- 
posal of the suit on the merits. The 
District Judge recorded that he was not 
o satisfied. It is, however, now argued 
that in fact the disposal of the suit on 
the merits was prejudicially affected 
'because the forum of appeal would on a 
correct valuation of the suit have been 
the High Court and not the District 
Judge, and Mohni Mohan v. Gour 
Chandra (6) is cited in support of the 
contention. That decision does not 
assist the appellants. Therein it was 
held that where in a suit tried by a 
Subordinate Judge the appeal was 
wrongly preferred to the District Judge 
in disregard of his peouniary jurisdiction 
in appeal, the appeal was incompetent 
and S. 11 of the Suits Valuation Act, 
1887, was inapplicable 'as in fact the 
undervaluation prejudicially affected the 
-disposal of the appeal on the merits. 
In the present case the appeal lay to 
the District Judge whether the correct 
valuation of the subject-matter was 
Bs. 1,100 or was Rs 3,650 as the District 
Judge found it to be for purposes of 
assessment of GourHee. The real plea 
on behalf of the appellants is that the 
true valuation exceeded Bs. 5,000 so 
that the appeal from the decision in the 
suit would lie to the High Court; But 
that plea must fail in the first place 
because it is not taken in the grounds of 
Appeal and in the second place because 
there is nothing before us which would 
lead us to hold that the valuation of 
Bs. 3,650 is erroneous, and the appeal in 
a suit so valued lies to the District Judge 
and not to the High Court. The third 
submission also fails. 

I would therefore dismiss this appeal 
with costs. 

Dawson- Miller, C. J. I agree. 

Appeal dismissed. 



(6) [1903] 5 P. Lu J, 897= 
T. 890. 



=l P, L. 



* A. I.R 1926Patna 14 

DAS AND Boss, J J. 

Rameshwar Singh Bahadyi Plaintiff 
Appellant. 

Durga Mandar and others Defen- 
dants Respondents. 

Appeal No. 825 of 1922, Decided on 
29th May 1925, against the Appellate De- 
cree of Sub-Judge, Bhagalpur, D/- 26th 
May 1922. 

^ Hindu Law Debts Son's liability 
Father undertaking to pay money misappro- 
priated by another Money misappropriated 
after having taken lawfully Son is liable. 

Whore the taking of the money itself is not a 
criminal offence, a subsequent misappropriation 
by the father cannot discharge the son from hia 
liability to satisfy the debt. The same principle 
applies where the misappropriation was not 
midi by the father but by a third persoa and 
the father undertook to pay the money for such 
third person In such a case also the son is 
liable to discharge the obligation; 39 Cal. 
862, AppL. [P 15, 2] 

Murari Prasad and Sambhu Saran 
for Appellant. 

Siveshwar Dayal for Bespondents. 

Das, J. This appeal is directed 
against the judgment of the Subordinate 
Judge of Bhagalpur, dated the 26th of 
May 1922, and arises out of a suit insti- 
tuted by the appellant, the Maharaja of 
Darbhanga, to enforce a mortgage bond 
executed by one Adhik Lai Mandar in 
his favour on the 4th of April 1916. 

The plaintiff's case as made out in the 
plaint is as follows : One Jag Narayan 
Lai Das was his Patwari and he owed 
the plaintiff Bs. 1,231-15-9 in respect 4 
of the collection made by him on 
behalf of the plaintiff. The Patwari 
being unable to pay the amount arranged 
with Adhik Lai Mandar to execute the 
mortgage bond in question in* favour of 
the plaintiff. The plaintiff states that 
there were money-lending transactions 
between Adhik Lai Mandar and Jag 
Narayan and that Adhik Lai p%id Bs. 200 
in cash to the plaintiff and executed a 
mortgage bond for Bs. l,031-15-91n favour 
of the plaintiff. Adhik Lai Mandar is 
dead and the suit is now brought against 
defendant No. 1, the minor son of Adhik 
Lai, and Billo Mandar his brother. The 
allegation in the plaint is that the defen- 
dants were members of a joint family of 



1926 



BAMESHWAK SINGH v. DCJRGA MANDAR (Das, J.) 



Patna 15 



which Adhik Lai Mandar was the karta 
ind that, as suoh the plaintiff is entitled 
to enforce the mortgage bond as against 
She members of the joint family. 

The learned Munsif found that the mort- 
gage bond was in fact executed by Adhik 
Lai Mandar for valuable consideration. 
According to him Jag Narain Lai mis- 
appropriated the sum of Bs. 1,231-15-9 and 
Adbik Lai executed the mortgage bond in 
jmestion in consideration of the plaintiff 
ibstaining from taking criminal prooeed- 
ing as against Jag Narain. On this find- 
ings he thought that the mortgage bond 
sould not be enforced as against the defen- 
dants, and he dismissed the plaintiff's suit 
Hrith costs. On the'question whether de- 
fendant No. 2, the brother of Adhik Lai 
Mandar, was in any event liable, he came 
bo the conclusion that Biilo Mandar was 
separate from Adhik Lai and could not in 
any case be liable on a bond executed by 
Adhik Lai. The plaintiff appealed to the 
learned Subordinate Judge, That learned 
Judge agreed with the finding of the Court 
of first instance on dae question whether 
Billo was joined with Adbik Lai. He 
thought that there was no consideration 
for the mortgage bond and that, were 
Adhik Lai Mandar alive, the plaintiff 
3ould not enforce the mortgage bond 
igainst him. He also agreed with the 
finding of the learned Munsif that the 
defendants could not be made liable on the 
bond in question, and dismissed the appeal. 
The plaintiff now comas to this Court. 

The finding of the Courts below that 
Billo Mandar was separate from Adhik 
Lai Mandar is a finding of fact which is 
bincling on us in second appeal. The 
plaintiff's suit as against Billo Mandar 
must accordingly fail. 

The next question is whether the plain- 
tiff is entitled to recover the money 
covered by the mortgage bond from the 
defendant No. 1. The solution of this 
question depends on whether what Adhik 
Lai undertook to pay was tainted with 
illegality or immorality. The argument 
on behalf of the respondents in this Court 
was to the, effect that Jag Narayan Lai 
was guilty of a criminal offence and that, 
if he had Executed the * mortgage bond in , 
question, it could not be enforced as 
against his sons ; and that tha( being so, 
and Adhik Lai having undertaken to pay 
the money tainted with illegality or im- 
morality, his son, defendant No. 1, cannot 
be oailed upon to pay the debt of hh 



father. There ara many decisions in the 
books on the question how far a Hindu son 
is under a pious obligation to discharge a 
debt of his father when such dab 4 ; consists 
of money misappropriated bytlu latter. 
Here the mortgage bond was not executed 
by the Patwari, but by Adhik Lai Mandar, 
who certainly was not guilty of any cri- 
minal misappropriation. But the problem 
is exactly the same, namely, is there any 
illegality or immorality involved in a 
transaction of this nature. There is a 
divergence of judicial opinion on this 
question ; but, as was pointed out by 
Mookerjee, J., in Chhakauri Atahton v. 
Ganga Pmsad (l) u the cases might possi- 
bly be reconciled if we recognize the 
distinction between a criminal offence and 
a breach of civil duty." That learned and 
distinguished Judge discussed the various 
cases on the point and came to the conclu- 
sion* that "Where the taking of the money 
itself is not a criminal offence, a subse- 
quent misappropriation by the father can- 
not discharge the son from his liability to 
satisfy the debt ; but the'position is differ- 
ent if the money has been taken by the 
father and misappropriated under circum- 
stances which render 1 the taking itself a 
criminal offence." I entirely agree with 
the view taken by Mookerjee, J., in the 
case to which I have referred which is 
founded on the decision of the Madras 
High Court in Medai Tirumalayappa 
Mudaliar v. Veerabadra (2). 

What then is the position ? Jag Narayan 
was the plaintiff's Patwari. It was his 
duty to make collections on behalf of the 
plaintiff and the taking of the money was 
in the ordinary course of his employment 
as Patwari and was in no sense a criminal 
offence. Now what was the position when 
the money originally came into the hands 
of Jag Narayan? It was his duty to 
account; for it to the plaintiff and the 
failure to do so involved on his part a 
breach of civil duty. It is said that he 
misappropriated the money ; but if ha did 
so, it was a subsequent act, for, as I have 
said, it was part of his duty to make 
collections on behalf of the plaintiff. 
That being so, the son is clearly 
under a pious obligation to discharge the 
debt incurred by Adhik Lai Mandar, 
The plaintiff is, however, not entitled 
to a mortgage decree, for be has 

(1) [1912 j 89Oftl, 862=46 0, W. N. 519 U 

I. 0. 6b94Et5 0. L. J. 228, 

(2) [1909] 19 M. L, J. 759=4 I. C. 1090, 



1C Patn* AOHORI KOERI v. KISHUNDEO NABAYAN MAHTA (Adami, J.) 1926 



not shown that the debt was incurred for 
the benefit of the family. He is entitled 
to a decree for the sum of Rs. 1,031-15-9 
with interest thereon at 12 per cent, per 
annum up to the date of this decree. 
The plaintiff is also entitled to interest 
at 6 par cent, per annum on his decree 
up to the date of realisation. He is en- 
titled to recover the money out of the 
entire ancestral property now in the 
hands of defendant No. 1. The plaintiff 
will also get his coits throughout from 
the defendant No. 1. 
Rosa, J. I agree. 

Appeal allowed. 



AIR 1926 Patna 16 

DAS AND ADAMI, JJ, 

Aykon K(?eri and others Appellant?, 
v. 

J}, Kisktindeo Narxyaii Mahta and 
other* Respondents. 

Civil Appeal No. 88 of 1922, Decided 
on 2.'Jrd April 1925, from a decision of 
the District Judge, Darbhanga, D/- the 
16th January 1922. 

Land Acquisition Act (1 of 1894), S. 11 (3) and 
30 Occupancy lands acguired Lands not 
transferable without landlord's consent Land- 
lord is entitled to a share of the compensation 
money Occupancy holding Acquisition. 

When occupancy lauds are acquired the land- 
lord is entitled to some oompenmtion, if there is 
no custom of transforabiLity without consent of 
the landlord or if within the next 20 years, the 
landlord could have enhanced the rent of the 
land*. [ P 16, 2] 

Janah Ktshore for Appellants. 

S. M. Mullick, S. N. Bow, Rai Guru 
Saran Prasad and T. N. Sahay for 
Kespondants. 

Adami, J. This appeal arises out of 
an acquisition of certain lands for the 
expansion of the Agricultural Farm at 
Pusa. The Daputy Collector, in respect of 
tho occupancy lands, awarded full com- 
pensation to tenants. The landlords 
made a reference against this decision to 
the District Judge and the result; was 
that the District Judge found that out 
of tho compensation paid to the occu- 
pancy raiyats one- fourth should be paid 
to fche landlords on the ground chiefly 
that occupancy holdings were not trans- 
ferable without the consent of the land- 
lords and on the ground thtf i-he land- 
lord was entitled to compensation by 



reason of his rights of reversion and right 
to enhance the rents. 

Mr. Janak Kishore, on behalf of 72 of 
the tenants only, raises this question be- 
fore us, namely whether the landlords 
were entitled to receive this 25 par cent 
out of the compensation awarded to the 
tenants. 

Now, the Land Acquisition Deputy 
Collector in hia note of reference stated 
that the village note mentioned that the 
holdings were transferable without the 
landlord's consent and that there was no- 
evidence adduced to show that salami was 
payable on transfer by the raiyats.' The 
learnad District Judge has come to a find- 
ing in the opposite direction. He states 
that the village note does not support 
the custom of transferabilifcy without the 
landlord's consent and that it has been the 
custom to pay salami of 25 per cent, on 
transfer of an occupancy holding. For us- 
to be able to decide this appeal, it is ne- 
cessary to have before us good evidence- 
both as to tho custom of transferability 4 
and as to the payment of salami. Such- 
evidence is not on the record. The vil- 
lage note even is not before us although 
both Courts have referred to it. We have 
looked at the evidence and it is scanty, 
and is insufficient to show to our satis- 
faction whether there is the custom of 
transforability or not. 

For a right decision of this question, 
whether any amount should be taken out 
of the compensation awarded to the ten- 
ants to be paid to the landlords it is neces- 
sary to decide whether the custom of 
transferability exists. It is also neces- 
sary to find out whether the landloHs 
had at tho time of the acquisition the 
right to enhance the rent within 20 years 
of that date and we must send back this 
case in order that full evideribe may t^j 
taken to enable a decision on these points 
It has to be remembered tha't if there is 
no custom of transferability -without the 
consent of the landlords, the landlords 
will be entitled to some compensation 
for the right this implies, and the restric- 
tion is detrimental to the tenant's claim 
to full compensation. If, on *the other 
hand, there is a right of tranaferability 
without the consent of the landlord, the 
landlord will not be entitled to a share 
in_the confpensation. 

Then as to t,he question of enhancement 
if, within the next 20 years, the landlord 
could h we enhanced the rent, asho wn by 



1998 



RAMOHAKDRA SlNOff * JANG BAHADUR SINGH (Dftg, J). Patna IT 



Maclean, C. J., in the case of Bhupati Boy 
Chowdhury v, Secretary of State (1), the 
landlord would be entitled to some amount 
of compensation, although, as pointed out 
by the learned Chief Justice, it will be 
difficult to estimate the money value of 
that compensation. 

Let, therefore, the case be sent back to 
the District Judge in order that the follow- 
ing two issues may be decided : 

(1) Whether a custom of transferability 
without the consent of the landlord exists 
in the village, and 

(2) Whether the landlord had accruing 
to him within the next 20 years the right 
to enhance the rent under the Bengal 
Tenancy Act ? 

After taking evidence on these issues and 
coming to a finding, the District Judge 
will return his finding to this Court. The 
parties will be at liberty to adduce such 
evidence as may be necessary to prove 
their respective oases. The finding should 
be returned to thia Court within two 
months from the date of the receipt of the 
record. 

Costs will abide the result of the appeal. 

Pas; J. : I agree. 

Case remanded. 

(I) (1907) 5 O.L.J. 663. 



* A.I.JB. 1926 Patna 17. 

DAS AND ADAMI, J.T. 

Bamchandra Singh and others Appel- 
lants 

v. 

Jang Bahadur Singh and others Res- 
pondents. 

* Appeal No. 14 of 1923, decided on 
27th July, 1925, against the Appellate 
Decree of the District Judge, Gaya, dated 
13th June, 1922. 

* Hindu Law Alienation by manager for per- 
sonal benefit is not binding though the manager 
thares the benefit with the family voluntarily or by 
agreement. 

It is not in the power of the karta of joint 
family to bind the joint family by entering into 
speculative transactions. The question of benefit to 
the family must be determined by reference to the 
nature of the transaction, ariti not by reference to 
the result thereof, although the result may pro- 
perly be taken into consideration in determining 
whether the transaction was one into which a pru- 
dent owner would enter, Where a transaction 
would result in benefit to the manager personally 

1926 P/3 & 4 



and not to the family, debt incurred for the tranM* 
tion is not binding. The fact that the manager, 
either by agreement with the family or volun- 
tarily shares the benefit with the family makes no 
difference, [P. 19, Cols, 1 & 3,] 

S. M, Mullick and S. N. Boy tor 
Appellants. 

Hasan Jan and Kailaspati for Res- 
pondents. 

Das, J, : Dasarafc, Nankhu and Ram- 
loohan were three brothers. Bamloohan 
died leaving a widow Sahodra Kuer and a 
son Baghubar Dayal. Bbupnarain cited as 
defendant No. 1 in this suit is the son of 
Nankhu. Biahundayal cited as defendant 
No. 8 is the grandson of Dasarat. Defend- 
ants Nos. 2 to 7 are the sons and grandsons 
of Bhunnarain. Defendant No. 9 is the 
son of Bishundayal and defendant No. 10 
is the son of defendant No. 9. It baa 
been found by the Court below, and the 
finding is one which is binding on us in 
second appeal, that Bbupnarain and Bish- 
undayal together with their sons and 
grandsons constitute a joint family. It has 
also been found that Baghubar Dayal was 
separate from Bbupnarain and Bishundayal. 

Baghubar Dayal died leaving, according 
to the case of all the parties, three daugh- 
ters Phalindra Kuer, Lalpari Kuer and 
Sabinda Kuer. It was the case of Bhup- 
narain that Bagbubar Dayal died leaving 
also a son Baburam who died shortly after 
the death of Baghubar ; and tbat, in the 
events which happened Sabodra Kuer be- 
came entitled to succeed to the properties 
of Baburam on his death as his grand- 
mother and that the daughters of Baghubar 
Dayal had no interest in the properties 
which were once of Bagbubar Dayal bud 
which on his death came into the handa 
of his son Baburam. Bhupnarian con- 
tended that he was the reversionary heir of 
Baburam and would be entitled to succeed 
to the properties upon the death of 
Sahodra Kuer. Sahodra Kuer on the other 
hand contended tbat Baghubar Dayal died 
leaving three daughters and she applied in 
the Land Registration Department for re- 
gistration of the names of the daughters of 
Baghubar Dayal who are all minors and 
whom Sabodra Kuer purported to represent! 
in the matter of that application. On the 
20th February 1909 the land registration 
case was decided against Bhupnaram and 
on the 27th April 1909 Bhupnarain insti- 
tuted a title suit as against Phalindra 



18 Pattm BAMOHANDBA SINGH V. JANG BAHADUB SINGH (Das, J). 



Kner, Lalpari Kuer and Sabinda Euer in 
substance for a declaration that they as 
the daughters of Raghubar Dayal had no 
interest in the estate whioh was onoe of 
Raghubar Dayal and that he was entitled 
to succeed to the properties on the death 
of Sahodra Kuer. The suit was resisted by 
the daughters of Ragbubar Dayal ; but was 
ultimately compromised on the 14th 
February 1912 by whioh Bhupaarain got 
7 dams 13 cotvris out of 10 dams 13 cowris 
mokarrari in Mouza Senaria and 32 Ing has 
of r my at i land and the daughters of Bagbu- 
bar Dayai got 3 dams of mokarrari in the 
same village and certain other properties. 

In the course of this litigation Bhup- 
narain had bo borrow certain sums of 
money from time to time from the plain- 
tiffs who are the appellants in this Court. 
The money was required by Bbupnarain 
to enable him to prosecute fcbe suit as 
against the daughters of Raghubar Dayal. 
Five mortgage- bonds in all were executed 
between September 1909 and November 
1910. Of these, four mortgage-bonds were 
executed by Bhupnarain and Bishundayal 
and one was executed by Bhupnarain 
during the illness of Bishundayal. The 
suit out of which this appeal arises was 
instituted by the appellants to enforce 
these mortgage- bonds as against the entire 
joint family consisting of Bhupnarain, 
Bishundayal and their sons and grand- 
sons. The suit was not resisted either by 
Bhupnarain or Bishundayal ; but it was 
resisted by their sons and grandsons and 
the only question is whether the plaintiffs 
are entitled to a mortgage- decree in this 
suit. It is conceded that they are not 
entitled to any personal decree as against 
Bhupnarain and Biahundayal inasmuch 
as the suit was brought more than six 
years after the execution of the mortgage- 
bonds. 

The Court of first instance dismissed the 
suit on the ground that the money was 
borrowed by Bbupnarain and Bishundayal 
without any legal neoessity. The learned 
Judge in the Oourt below has reversed the 
decision on the ground that the expendi- 
ture of the money resulted in a benefit to 
the joint family and that accordingly the 
creditors are entitled to a mortgage- decree 
as against tbe joint family. 

There is one passage in the judgment of 
the learned District Judge whioh requires 
immediate attention. He says : " At the 
Cutset I may say that I have not been able 



to find any authority for the proposition of 
law advanced by the learned Subordinate 
Judge, that is, that speculative expenditure 
will not bind a joint family, however, bene- 
ficial be the result. The law would appear 
to be that the test of the transaction is 
the question of the actual benefit, and that, 
if the joint family derived actual benefit 
from the expenditure in our rod by the 
kartas, it would be bound by the expendi- 
ture, even though the latter may have been 
speculative at the outsat, " I entirely differ 
from tbo learned District Judge. It is 
necessary to remember that " the power of 
the manager for an infant hoir to charge an 
estate not his own, is under the Hindu 
Law, a limited and qualified power." I may 
point out that it is settled law that the 
power of a karta of a joint Hindu family 
stands on the same footing as that of the 
manager. In the loading case of Hunooman- 
Persaud Panday v. Babooee Munraj Koon- 
loeree (1), the position in regard to the 
power of the manager to charge an estate 
which belongs to an infant heir is stated in 
these terms : " It can only ba exercised 
rightly in a case of need, or for the benefit 
of the estate. Bat, where, in the particular 
instance, the charge is one that * prudent 
owner would make, io order to benefit the 
estate, the bona fide lender is not affected 
by the precedent mia-managoment of the 
estate. The actual pressure on the estate, 
the danger fco be averted, or the benefit to 
be conferred upon it, in the particular in- 
stance, is the thing to be regarded." It is 
obvious, therefore, that the test whioh 
must be applied by the Oourt in each case 
is is it a transaction into whioh a prudent 
owner would enter? Now I hold thata 
prudent owner would never think of enter- 
ing into a speculative transaction whioh 
may benefit him, but whioh may also 
cause him loss. Tbe question of the 
right of the creditor or the liability of 
the joint family cannot depend upon the 
spin of the coin or the throw of the dice. I 
may be possibly taking a very extreme case, 
but the test, in my opinion, is the same. 
In Ram Bilas Singh v. Ramnad Singh (2), 
the Chief Justice of this Court after point- 
ing out that it is not desirable u'o lay down 
any general proposition, whioh would limit 
'and define the various oases, whioh might 

(1) U854-57I 6 M. I, A. 393-18 W.R. 81 (n)-8 

Buiher 99-1 Br. 663 (P.O.). 
(3) (1930) 1 P.L.T, 535 -58 I. 0. 303-5 P.L.J. 

699. 



BAMOHANDBA SINGH V. JANG BAHADUR SINGH (Da0, J.) Fatna 19 



be classed under the term beneficial as 
used in the oases, said as follows : " Ifc is 
clear, however, that all transactions oi a 
purely speculative nature would properly 
be excluded " I may refer to a passage 
in my judgment in Skeotxhal Smqh v, 
Arjun, Das (3): "I quite agree that the 
manager of a joint family has no authority 
whatever to affect or dispose of any portion 
of joint family property in order to enable 
him to embark on speculative transaction." 
In my judgment in that case I conceded 
that there is a certain element of risk in 
every business transaction, and if we are to 
hold that when the business has succeeded 
and the entird family haa benefited by it, 
we ought nob bo uohold the mortgage tran- 
saction entered into by the manager to en- 
able him to embark on suah a business un- 
less the mortgagee satisfies us that the busi- 
ness was bound to succeed and that bonefib 
was bound to accrue to the family, we would 
necessarily handicap the managers of joint 
Hindu families and place limitation on 
their powers, which would have the effect 
of stopping all business transactions in 
every Mitakshara family. But it is one 
ttiing to say that a manager of a joint Hindu 
family has complete power to enter into 
business transactions, where the particular 
business is part of the ancestral joint family 
property , it is another thing to say 
that he has power to enter into speculative 
transaction* I sbiil adhere to the opinion 
which I expressed in that c<iso that the 
iesfe is not whether benefit was bound to 
accrue to the join 5 family , but ic is still 
necessary for tbe mortgagee to show that 
the transaction was one into which a 
Drudent owner would enter , and as soon aa 
this test is laid down we must hold that ib 
is not m the power of the Karta of a joint 
family to bind the joint family by entering 
into speculative transactions. In my 
opinion the question of benefit must be 
determined by reference to the nature of 
the transaction, and not by reference to the 
result thereof ; although the result may 
properly L-a taken into consideration in 
determining whether the transaction was 
one into which a prudent owner would 
enter The proposition resfcs on principle 
and is cohered by authorities and it is not 
necessary to pursue the subject. 
The question, however, is somewhat 



(1920) 1 P,D.T, 186-56 I.C, 879-1920 P. H, 
G, C, 155. 



different in this case. It is'oonoeded that 
the creditor must establish that the 
transaction was for the benefit of tbe joint 
family. The money was borrowed and the 
mortgages were executed to enable Bhup- 
narain to establish his title to tbe estate of 
Baburain. OQ his own case Bhupnarain 
was the nearest heir expectant of B*buram 
on the death of Sahodra Kuer. Biahundayal 
was oue degree removed from Bhupnarain 
and was nob entitled in any case to succeed 
to the properties of Baburam. If Bhup- 
narain succeeded in the action he might 
establish his title to the estate of Baburam , 
but the joint family of which he was a mem- 
ber would not necessarily participate in the 
benefit that might accrue to Bhupnarain. 
What then was the position of fcha joint 
family > Bhupnarain might fail to establish 
his case in which case his au'fc would 
bo dismissed and no benefit woulri accrue 
fco the joint? family , bub Bhupnarain might 
succeed. But if he succeeded the benefit 
would accrue to him and not to the joint 
family , for it is wall established that 
unless he chose to share the property along 
with the members of the joint family the 
fruits of his victory would belong to him 
and not to the joint family. How can it then 
be said that the mortgage transactions 
ware for the benefit of the joint family } 

Ibis said that Bhupnarain has actually 
made over the property which he gained 
as a result of his suit to the joint family. 
That may be so, but tfaa matter rested 
with Bhupnarain and the joinb family 
could never have compelled him to make 
over tha property to it. Benefit has 
aocruod to the joint family, nob as a result 
of the transactions which are the subject- 
matter of the suit, bub as a result of an act 
of bounty on the pari of Bhupnarain If 
it be contended that there was an agree- 
ment between Bhupnarain and the joint 
family by which the joint family agreed to 
finance Bbupnarain in the litigation and 
Bbupnarain agreed to share fche property 
which was the subject matter of that 
litigation with the joint family, I would 
unhesitatingly say that tha agreement 
being of a speculative nature could not 
bind the joinb family. 

In mv opinion the decision of the 
learned District Judge cannot he supported. 
I would accordingly allow the appeal, set 
aside the judgment and tbe decree passed 
by the Court below aod restore the 
judgment *nd the decree of the Additional 



20 Patna BADBI CHAUDHRT v. KING-BMPEROB (BuokniU, J.) 



Subordinate Judge. The result ia that the 
suit ia dismissed with costs in this Court 
and in the Court below. So far as the 
costs in the Court of first instance are 
concerned, I agree with the learned 
Additional Subordinate Judge that each 
party should bear his own costs. 
Ad ami, J, : I agree. 

Appeal allowed. 



A.I.R. 1926 Patna 20. 

BUCKNILL AND MACPHBRSON, JJ, 

Badn Chaudhry and others Accused- 
Appellants 

v, 
King-Emperor Opposite Party. 

Criminal Appeal No. 15 of 1925, deci- 
ded on 19th March, 1925, against an order 
of the Sessions Judge, Darbhanga, dated 
19th January, 1925. 

Crim, Pro, Code, 8 2M Statements of witness- 
a recorded bjy investigating (fficer cannot be used 
to show that the statements do not assist the story 
fWi forward in the first information report* 

According to the recently amended provisions of 
the Crim. Pro, Code, statements of witnesses 
recorded by the investigating c fficer can only be 
uned to assist the accused in particular by ehowing 
that a witness who in court deposes to certain facts 
baa in such a statement at an earlier stage given 
an account or made statements which are contra- 
dictory to the testimony which he gives in Court. 
They cannot be used in croeB-eiaminicg the wit- 
nesses not merely to show contradictions but at 
large for the purpose of showing that the state- 
meets did not corroborate or assist the story as put 
forward in the first information report, [P 31, 
Col. a.] 

K. B. Dutt, S. P. Varma and Lakshmi 
Kant Jha for Appellants. 

H. L. Nandkeolyar for the Crown. 

FACTS : This was an appeal made to 
the High Court by eight persons wbo were 
convicted on the 13th January 1925 by 
the Sessions Judge of Darbhanga of various 
offences and were sentenced to various 
terms of imprisonment, \Vben the appli- 
cation for the admission of this appeal came 
before the High Court (before Muliick and 
BuokniU, JJ.), their Lordships ordered that, 
although the appeal should be heard, the 
appellants should be directed to show cause 
why their sentences should not be en- 
hanced. This was on the 21st January 
J925, 



Bucknill, J.: [His Lordship after 
stating facts as given above, proceeded :] 

Now, the learned Counsel has as bis first 
point strenuously suggested that the story 
whioh was put forward by the prosecution 
as the occasion and cause of the wounding 
of the deceased, his brothers and Sheikh 
Banwali was not true. He has pointed 
out that there is a substantial difference 
between important features in the first 
information report whioh was laid by the 
deceased man on the 5th August, at the 
Bahera police station, and a statement 
whioh he subseqently made before a Magis- 
trate on the 14th August, when it was seen 
that his condition of health owing to his 
having contracted look-jaw was such that} 
it was probable that he would not recover* 
The principal feature of difference to 
whioh very prominent attention has been 
drawn by the learned Counsel for the 
appellants is that in the first information 
the deceased man undoubtedly states that 
on the 4th August, it was the third 
appellant Tirpit who had demanded forced 
labour from him and upon his refusal had 
threatened him with serious consequences 
on the following day. In the statement 
made by the deceased on the 14th August, 
it will be seen that the deceased man says 
that the occurrence on the 4th August, 
was between himself and the father of the 
third appellant, namely, Sinalai Cbaudhry. 
The learned Sessions Judge evidently 
either thinks that there has been some 
mistake or pays little attention bo this 
discrepancy. I think it is undoubtedly a 
peculiar matter and it is certainly remar- 
kable that the deceased should have in the 
first instance spoken of the son (that id 
to say, the 3rd appellant) as having had 
words with him on the 4th August, and 
in the second instance that he should have 
spoken of the father. There is,' however, 
this to be said that there is no doubt that in 
the first information report the deceased 
man speaks of the "rnalik resident " whilst 
in the statement which he made on the 
14th August, he merely mentioned the 
name of Sinala), the father of the man 
Tirpit Chaudhry, the 3rd appellant, whom 
however he did mention by nanle in the 
first information. 1, do not pretend to 
explain bow this difference arose but at 
any rate there can be no doubt that the 
3rd appellant's father had only quite 
recently become the malik of the deceased 
man, who was one of his raiycds. 



1988 



B1DRI CHAUDHBY V. KING-BMPEROR (MaOphetSOD, J.) PatHa 



The learned Counsel has also referred 
to a somewhat remarkable abatement 
which appears to have been made by one 
Genwa Dasadh, a chaukidar, oc the 5th 
August, at the police station ah about 
3 p.m. It is not quite olear whether the 
chaukidar. at the time he gave the informa- 
tion, was aware that something of the 
nature of a disturbance had already taken 
place. Bat what was takan down in the 
station diary at the Bahera polioe station 
was to the effect that this chaukidar had 
arrived and reported that there was an 
apprehension of a breach of the peace 
between Sheikh Mazhar and Sheikh Latif 
on the one side and Sinalai Ohoudhry and 
others on the other side in connection with 
lands. The learned Counsel has per- 
sistently suggested that it was really a 
dispute about land and not absub begari 
which had led up to the affray and he 
based, in the first instance, one of his 
arguments in this direction upon what he 
thought wag the fact that although a 
number of persons had accompanied the 
deceased man bo the thana when ha gave 
the first information, yet no person other 
than the deceased had given the names 
of any of those who were said to hava 
attacked him. He, therefore, suggested 
that at that time these persons, such as 
for instance Jero and Latif, the brothers 
of the decaased, who undoubtedly wore 
both injured and were certainly present 
at the occurrence, did not know who had 
attacked their brother the deceased and 
subsequently concocted the story which 
has resulted in the conviction of the 
present appellants. The learned Sessions 
Judge does not appear, so far as I can 
gather, to have examined carefully what 
these persons did actually say to the 
Head Constable who took down the first) 
information gjven by the deceased. How- 
ever, in this Court we had this document 
examined and it is found that the contention 
which was pub forward by the learned 
Counsel for the appellants could cot be 
substantiated ; for it is quite clear that those 
persoas whj were examined by tha Head 
Constable and who purported to be eye- 
witnesses did in fact corroborate what had 
been said by the deceased in his first 
information. Thin argument, ^therefore, 
that, owing to the lack of corroborative 
evidence at an early stage of the proceedings 
little, if any, value can be attached to the 
a&rst information ibaelf, (alia to the ground, 



But, it is, I think, at this stage not 
unimportant to draw attention to tha 
somewhat free use which appears to have 
been made of these statements to the polioe 
officer. It is said that according to the 
recently amended provisions of the 
Criminal Procedure Code documents of 
this character can only be used to assist 
the accused in particular by showing that 
a witness who in court deposes to certain 
facts has in such a statement at an earlier 
stage given an account or made state- 
ments which are contradictory to the 
testimony which he gives in court. Here, 
in this case, these statements made to 
the polioe appear to have been used in 
cross-examining the witnesses not merely 
to show contradictions but at large ; and 
they have beon referred to in this Court 
again ab large not merely with the idea 
of contradicting the witnesses' evidence 
bub rather for the purpose of showing that 
the statements did not corroborate or 
assist the story as put forward in the 
first inlormaliioureporD. I, fcharefore, must 
observe thad it was only when this 
sutfjjestion that these statements could 
thus be utilized as a serious aUack upon 
the truth of the first information was made 
that I thought it desirable that what had 
actually been stated to the police officer 
should be seen and scrutinized ; and it was, 
as 1 have said, then ascertained that the 
contention which was bemg put forward 
was not in fact correct). I am not, however, 
satisfied that the use which was sought to 
be made of these statements, both at the 
trial and in this Court, was justified by 
the present provisions of toe Criminal 
Procedure Code. The matter, however, 
need not ba pursued here further ; because 
although it is suggested, now somewhat 
naivety, that thia Court should nob perhaps 
have examined these documents for the 
purpose of scrutinizing them in order to see 
if the argument put: forward by the learned 
Counsel for the appellants was sustainable, 
yet I can only point out that the examina- 
tion of these statements by this Court was 
really rendered necessary by the argument 
of the learned Counsel for the appellants ; 
an argument which perhaps should not 
hivebeen listened to. 

(The rest of His Lordship's judgment is 
not material to our report.] 

Macpherson, J.:-I agree that this 
appeal mufb be dismissed and that tha 
sentenoea under Motion 148, I.P.O,, aia 



.22 Patna BADRI OHAUDHBY v. KING-EMPEROR (Maopherson, J). 



Inadequate and fall to be enhanced as 
proposed. 

I offer a few additional observations. 

I agree generally with the careful judg- 
ment of the learned Sessions Judge except: 
in two particulars, The first of these is 
the question of sentence ; that has been 
fully dealt with in the judgment just de- 
livered. The second is his interpretation 
of the new section 162 of the Code of 
Criminal Procedure, and his admission in 
evidence of certain statements made to 
the investigating officer in the course of 
the investigation under Chapter XIV of 
that enactment. 

The effect of the amending Act of 1923, 
which is very great, has not yet been fully 
appreciated by the Subordinate Courts. 
Before that enactment came into operation, 
section 162 merely enjoined that the 
written record of a statement (not covered 
by section 32 (1) of the Indian Evidence 
Act) made by any person to a police officer 
in the course of an investigation under 
Chapter XIV should not be used as evi- 
dence. The proviso permitted tbe state- 
ment itself to be used in certain cir- 
cumstances to impeach tbe credit of tbe 
maker when examined as a witness. The 
new Act has substituted a section which 
prohibits the use of any such statement 
(not covered by section 32 (1) of tbe Indian 
Evidence Act, 1872) or any record of it 
whether in a police diary or otherwise or 
any part of such statement or record for 
any purpose (subject to subsequent provi- 
sions of the Code) at any inquiry or trial 
in respect of any offence under investiga- 
tion at the time when such statement was 
made. The expression " for any purpose " 
is very important and there is no sound 
reason why it should not be given its full 
value. K the legislature meant merely to 
prohibit; the use of the writing an evidence 
there was no point in amending the section 
or substituting the present stringent sub- 
section (1). It is not merely use as evidence 
of the statement or of the record thereof 
that is prohibited by sub-section (1) but 
use of it for any purpose, unless such use 
comes within subsequent specific provisions 
of the Code in that regard. There is for . 
all practical purposes no such provision ex- 
cept in the first proviso to sub-section (l) 
and >n sub-section (2), for section 162 
overns also section 172 (2). Sub- sec- 
tion (2) excludes frcm the operation of the 
prohibition cases covered by section 82 (1) 



of the Evidence Act, which do not require 
consideration in this appeal. 

The first proviso to section 162(1) 
makes an exception in favour of the 
accused but it is an exception most 
jealously circumscribed under the proviso 
itself. " Any part of such statement " 
which has been reduced to writing may 
in certain limited circumstances be used 
to contradict the witness who made U. 
The limitations are strict : (1) only the 
statement of a prosecution witness can 
be used ; and (2> ocly if it has been 
reduced to writing ; (3) only a part of the 
statement recorded can be used ; (4) such 
part must be duly proved ; (5) it must be 
a contradiction of tbe evidence of tbe 
witness in Court ; (6) it must be used as 
provided in section 145 of tbe Indian 
Evidence Act, that is, it can only be used 
after the attention of the witness has 
been drawn to it or to those parts of it 
which it is intended to use for the pur- 
pose of contradiction, and there are others.' 
Such a statement which does not con- 
tradict tbe testimony of tbe witness 
cannot be proved in any circumstances 
and it is nob permissible to use the 
recorded statement as a whole to show 
that the witness did not say something to 
the investigating officer. 

Unquestionably tbe new sub-section has 
greatly enhanced the difficulty of trials 
because it excludes much that was 
previously admissible as evidence on which 
the Courts were accustomed to rely. It k 
unfavourable to the prosecution and to a 
less, but still considerable, extent to the 
defence. Experience points to the conclu- 
sion that the Courts do apply tbe provisions 
against tbe prosecution but fail to do so 
against the defence. It is, however, not 
a sufficient ground for deviating from what 
is intended to be a rigid rule that such 
deviation will favour the accused. It ia 
incumbent on a Court loyally to observe 
the prohibition of the legislature in all oases 
where it is applicable. The legislature has 
employed firm language palpably intended 
to make a clean srceep of the u^e at a trial of 
any statement to the police during tbe in- 
vestigation, notorrfy in evidence but for any 
purpose not covered by subsequent provi- 
sions of tjbe Code which provisions make 
but oce exceedingly restricted exception. 
The* danger of endeavouring to temper this 
provision in favour of the defence and to* 
widen the exception is illustrated by thfe 



1986 LBKHRAJ MAHTON V, JANG BAHADUR SINGH (DftB, J.) 



Patna 



present case. In the cross-examination of 
the Head Constable, Bir Prasad, evidence 
.has been admitted of statements to the 
witness of five prosecution witnesses who 
accompanied the deceased Sheikh Mazhar 
to the thana and who were examined by 
him at the outset of the police investi- 
gation. Among them are several statements 
which are not admissible under the proviso 
to section 162 (1) or otherwise. Upon 
them the learned Sessions Judge founded 
the remark in his judgment : 

M None of the other witnesses told him that 
night as to who wer the assailants of Mazhar ", 
which on the record of the trial could 
only have bean arrived at by an inadmis- 
sible use of the record of the examination 
under section 161. If the inadmissible 
evidence be eliminated from consideration, 
as it must be, there is no warrant in the 
record for the remark, which indeed 
substantially misrepresents the position. 
Learned Counsel has urged that the 
question of re-trial should be considered 
because of the improper admission of 
such evidence. But under section 167 of 
the Indian Evidence Act the improper 
admission of evidence is not of itself a 
ground for a new trial or reversal of a deci- 
sion in a case, if it appears to the Court 
thab independently of that; evidence there 
was sufficient; evidence to justify the deci- 
sion. In the present instance the evidence 
improperly admitted was favourable to the 
appellants an i the elimination thereof only 
makes more inovi able the decision against 
them. In reaching '-his conclusion no use 
of the police diaries is made which is not 
warranted by section 172 of the Orim. Pro. 
Cfode or in accordance with the views ex- 
pressed by the Judicial Committee in the 
case of Dal Singh v. King -Emperor (1). 
The only use to which these diaries can be 
put is to aift the Court in an inquiry or trial. 
Learned Counsel is aware of the contents 
of the record of tho examination of the 
witnesses under section 161 and is unable 
to contend that a fuller utilisation of them 
in evidence within the limits of the law 
would at all improve the case for the appel- 
lants. [The rest of the judgment is not 
material tor our report], 
_ , Appeal dismissed. 

(1) (l917fU~CaTT876~44 LA. 137-16 A.L.J, 
475-1 P.LW. 661-19 Bom. L.R. filO-21 
O.W.N. 818-26 L.J. 18-SL.W. 71-22 
'M.L T. 81-'1917) M.WrN. 622-18 Or, L. 
J, 471-33MLJ. 665-11 Bur. -L.T, 54 
-89 1,0. 811-13 N.L.B. 100 (P.O.)* 



*ALR. 1986 Patna 83. 

DAS AND ADAMI, jj. 

Lekhraj Mahton Appellant 

v, 

Jang Bahadur Singh and others Res- 
pondents. 

Appeal No. 301 of 1921, decided on 8th 
April, 1925, from Original Decree of the 
Sub-Judge, Monghyr, dated 25th August, 
1921. 

* Transfer of Property Act, 8. 74 Subrogation- 
No subrogation if there is no redtmption Redemp* 
tion must be of entire security and net part Pay- 
ment by sulrogator mu&J, be on exprtss agreement 
with debtor or creditor. 

To entitle one to invoke the equitable tight of 
subrogation, he must either occupy the position 
of a surety of the debt or must have made the 
payment under an agreement with the debtor or 
creditor that he should receive and hold an assign- 
ment of the debt as security or he must stand in 
such a relation to the mortgaged premises that his 
interest cannot otberwino be adequately protected. 
Subrogation is by redemption and unless there 
is redemption subrogation cannot taka place. 
Before one creditor can be subrogated to the rights . 
of another, the demand of the latter must be 
entirely satisfied and not only in part, BO that ho 
shall be relieved from all further trouble, risk and 
expense. (36 Cal. 193, Foil,) [P, 24, Col. 2,] 

Ilasan Jan for Appellant. 

S. N. Roy and Satyadeva Sahaytot 
Respondents. 

Das, J. : The question in this appeal 
is one of priority. To appreciate the point 
involved in this case, it is necessary to 
remember the following transaction?! : 

On the 30th Baisak 1305 the principal 
defendants executed a mortgage in favour 
of Ghona Singh as a security for a loan of 
Bs. 3,700 advanced by Ghena Singh to the 
mortgagors. 

On the 1st Sawan 1305 they executed 
anotber mortgage in favour of Ghana Singh 
as a security for an advance of Bs. 500. 

In Kartik 1307 corresponding with the 
12th of November, 1899, they executed a 
zerpeshgi patta in favour of Sant Prasad 
and Bam Lagan. Defendants 7 9 represent 
the interest of Sant Prasad, and Bam 
Lagan has been cited as defendant No. 15 
in this suit. Sant Prasad and Bam Lagan 
paid Bs. 600 to the mortgagors and held 
Bs. 4,400 in their hands for the purpose of 
paying off the mortgages of Ghena Singh, 
the sum agreed to be advanced by Sant 
Prasad apd Bam Lagan being Ba. 5,000 in 



34 Patna LEKHBAJ MAHTON t>. JANG BAHADUR SINGH (Das, J.) 



1986 



all. It appears that Bam Lagan did not 
pay his share of the mortgage money, bat 
Sant Prasad discharged the mortgage 
bond of the lab Sawan 1305 by naying 
Ra. 738-12-3 to Ghana Singh. He also 
paid Rg. ^,10-1-3-0 to Ghena Singh in oarb 
satisfaction of the mortgage of the 30bh 
Baiaak 1305. 

Ghena Singh instituted a suit to enforce 
his mortgage of the 30th Baisak 1305. He 
obtained a decree and prooedeed bo sell the 
property in due course. In order to save 
the properties from sale, the mortgagor- 
defendants borrowed Bs. 6,000 from the 
plaintiff and on the 5th December, 1903, 
executed a mortgage in favour of the 
plaintiffs. Ib is the mortgage of the 5th 
December, 1908, which is sought to be 
enforced in this suit and the question is 
whether defendants 7-9 as representing the 
interest of Sant Pra&ad are entitled to 
priority in respect of the sums of monies 
paid by them and which form part of the 
consideration of their mortgage of the 12bh 
November, 1899. The learned Subordinate 
Judge has decided this question in favour 
of defendants 79 and the plaintiffs appeal 
to this Court. 

In my opinion the decision of the learned 
Subordinate Judge ia erroneous. Ib is quite 
true that Sanb Prasad paid off the mort- 
gage bond of the 1st Sawan 1305 ; but by so 
paying he acquired the rights and powers 
of Ghena Singh as a second mortgagee, for 
it is to be noted that the mortgage of the 
30th Baisak 1305 Was still outstanding. 
Now Ghena Singh enforced the mortgage 
of the 30bh Baisak 1305. He obtained a 
decree in due course and put up the 
mortgaged properties for sale. It was the 
duty of Sant Prasad under his contract 
with the mortgagor- defendants to satisfy 
the mortgage of the 30bh Baisak 1305 ; 
but he paid Ghena Singh the sum of 
Be, 2,104-3 Gin part satisfaction of his claim 
and failed to pay the balance to him. In 
these circumstances the mortgagor defen- 
dants approached the plaintiffs and took a 
loan from them to enable them to discharge 
the mortgage of the 30th Baisak 1305 
"keeping intact the encumbrances under the 
bond dated the 30bh Baisak 1305 and the 
decree in Suit 231 of 1907 " which was the 
suit instituted by Ghena Singh to enforce 
the mortgage of the 30th Baisak 1305. 

I have no doubt whatever that the plain- 
tiff is entitled to priority by virtue of his 
express agreement with the mortgagor- 



defendants. It has been pointed out more 
than onoe that to entitle one to invoke 
the equitable right of subrogation, he must 
either occupy the position of a surety of 
the debt or must have made the payment 
under an agreement with the debtor or 
creditor that he should receive and hold an 
assignment of the debt as security, or he 
must stand in such a relation to the mort- 
gaged premises that his inberest cannot 
otherwise ba adequately protected. In this 
case the mortgaged properties were about to 
be sold. Sanb Prasad refused to save the 
properties although under his contract with 
the mortgagor-defendants it was obligatory 
on him to satisfy the mortgage of the 30th 
Baiaak 1305. The plainbiffs thereupon 
lent money to the mortgagor-defendants in 
order to save the mortgaged properties and 
there was an express agreement between 
them that the plaintiffs should receive and 
hold an assignment of the debb as 
security. 

Bub it was pointed out that Sanb Prasad 
nob only paid off the mortgage-bond dated 
the 1st Sawan but also partly satisfied the 
mortgage of the 30th Baiaak 1305. As I 
have said, by paying off the mortgage bond 
of the 1st of Sawan Sanb Praaad stepped 
into the position of a second mortgagee. 
Now in regard to the payment by him 
of Ba. 2,104-3-0 the position of Sanfe 
Prasad is a perfectly hopeless one. It is well 
established that subrogation is by redemp- 
tion and unless there ia redemption sub- 
rogabion cannot take place. As was point- 
ed out by Muker ji, J. in Gurdeo Singh v. 
Chandrikah Singh (1)!" before one creditor 
can be subrogated to the rights of anotbejr, 
the demand of the latter must be entirely 
satisfied, so that he shall be relieved 
from all further trouble, rink and expense". 
In this case the demand of Qhena Singh 
was not entirely satisfied and in my opinion 
it is impossible to hold bbab the defendants 
7-9 are entitled to be subrogated to the 
securities held by Ghena Singh to the 
extent of Be. 2,1043 paid by them to 
Ghena Singh. 

I would accordingly vary the decree by 
discharging the direction of tfce Court 
below in regard to " the Han of defendants 
7.-9 for Ba. 738 3-12plua the am6unt that 
would be left out of Bs. 2,104-3-0 after 
deducting therefrom the interest on Bs. 1,850 
at 14 per cent, per annum from the 25th 

(1) (1909) 36 Gal. 199-18 1,0. 913-5 O.L.J, 611 



live 



frAUJDAR BAI V. KING-EMHBBOB (MullUk, J,) 



Patna 25 



Kartik 1307 to 9th Baisak 1309. The 
result is that the plaintiff is entitled 
to the usual mortgage decree with costs 
both in this Court and in the Court below. 
We give the defendants six months to 
redeem. The oross appeal is not pressed 
and is dismissed. 
Adami, J, : [ agree. 

Decree varied. 



AJ.R. 1926 Patna 25, 

MULLICK, J, 
Faujdar RJLI Petitioner 

v. 
King-Emperor Oapoaite Party. 

Oivil Criminal Raviaioa ND. 5 of 1925, 
decided on 14bh May, 1925, from an order 
of the District; MigiaSrioe, Ohamparan, 
dated 23rd February, 1925. 

fa) Civ. Pro. Code, 8. 115 Sub-Deputy 
Collector refusing application to prostcute 
Collector fn appeal setting aside the order and 
making a complaint exercises judicial powers and 
revision liesGovernment of India Act, 8. 107* 

Where fche Siib-Daputy Collector after inquiry 
refused the application of the opposite party for 
prosecution of petitioner under Penal Code, 3. 471 
bat on appeal the Collector set aside the order of 
the Sab- Deputy Collector and made a formal 
oomplaint under 8. 200, Grim. Pro. Code, for the 
prosecution of the petitioner. 

Held, that the Collector was clearly acting as a 
Revenue Court and he waa exercising judicial 
powers in setting aside the order of the Sub-Deputy 
Collector and in making a complaint under S. 200 
and wan therefore subject to the superintendence 
of the High Court and bis order is roviaable under 
8. 115, Oiv. Pro. Code, as also under S. 107 of the 
Government of India Act, (6 Pat, L. J. 178, Ref.) 
[P. .25, Col. 1,] 

(b) Grim, Pro. Code, S. -176 Criminal 
offence suspected Facts forming the offence should 
be determined in the proceeding* 

When a criminal offence is alleged to have been 
committed in 'the course of revenue or oivil 
proceedings, the rule is that the facts, upon which 
the criminal offence IB founded, should <*s far 
as pOBSibto be finally determined in the Civil or 
Revenue Court. A refusal to follow the rule 
materially affects the criminal proceedings and 
amounts to a denial of the right of fair trial. 
[P. 36, Col, 9.] 

(o) Grim, Pro, Code, 8. 476 B~Party prejudi- 
cially affected bas a right of appeal. 

8. 476-6 appears to contemplate that if an appel- 
late Court Seta a<ttde the vrder of the original , 
Court the party prejudicially affected has a right of 
appeal to the Court to which appeals from that 
appellate Court ordinarily lie. [P. 27f Col. 1,] 

S. P. Farwa for Petitioner. 
N. N. SinhatoT Opposite Parky.. 



Mullick, J. : This is an application in 
revision against a complaint made by the 
Collector of Ohamparan on the 23rd Feb- 
ruary, 1925, under section 476 of the 
Criminal Procedure Code against the peti- 
tioner Faujdar Bai for his prosecution for 
offences under sections 471 and 193, I. P.O. 
It appears that on the 1st July, 1924, the 
petitioner filed an application for the com- 
mutation of his rent under section 40 of the 
Bengal Tenancy Aofc before fche Sub-Deputy 
Collector of Champaran. On the same day 
he filed a patta alleged to have been given 
to him by the opposite party Beofci Baman 
Ojha. On the 5th August the petitioner 
was examined and the patta was tendered 
in evidence. On the 6th August the 
opposite party took a certified copy of the 
patta. On the 20th August the parties 
having come to an arrangement, the com- 
mutation case was withdrawn by the peti- 
tioner. On the 26bh August the opposite 
party asked the Sub- Deputy Collector not 
to return the patta to the petitioner ; but 
by that time ib bad already been taken 
back. On the llth September the opposite 
party asked the Court to direct the pro- 
secution of the petitioner for offences under 
sections 471 and 193, I.P.C., but the Sub- 
Deputy Collector after inquiry refused the 
application. 

On appeal the Collector set aside the 
order of fche Sub -Deputy Collector and, on 
the 23rd February, 1925, he marie a formal 
complaint unrter section 200, of the Cri- 
minal Procedure Code to the Sub- 
Divisional Magistrate of Motihari for the 
prosecution of the petitioner. 

The petitioner thereupon appealed to the 
Divisional Commissioner ; but he on the 
SOfch March, 1925, held that no appeal lay, 

Now the first question is whether the 
High Court] has any jurisdiction to inter- 
fere with the order of the Collector. The 
Collector was clearly acting as a Revenue 
Court and he was exercising judicial 
powers in setting aside fche order of the 
Sub-Ddpuby Collector and in making a 
oomplaint under section 200 of the 
Criminal Procedure Code. He was there- 
fore subject; to the superintendence of the 
High Court and his order is revisable 
under section 115 of the Civil Procedure 
Code, liuktu Singh v. Emperor (1) is 
authority for this view, 



(1)(192D 6P.L.J, 178-9 P.L.T. 609-93 Or, L, J. 
408-91 1,0. 648-1931 P.H.G.O. 340. 



36 Patna 



FAUJDAB BAI V. KING-BMPBBOB (Mullick, J ) 



1926 



The Court also baa jurisdiction to inter- 
fere under section 107 of the Government 
of India Aot. Undoubtedly the Collector 
had jurisdiction in appeal to set aside the 
Bub- Deputy Oolleotor'8 order declining to 
make a complaint against the petitioner. 
But in arriving at this result the Collector 
did not apply his mind to the evidence in 
favour of the petitioner and therefore he 
has failed to exercise jurisdiction. Finding 
that the opposite party had withdrawn from 
the compromise and instituted criminal 
proceeding* against him, the petitioner 
renewed his application for commutation 
and refiled the patta in the Sub-Daputy 
Collector's Court on the 14th November, 
1924. It is suggested that this is not the 
patta which was filed on the 1st July but the 
Bub-Deputy Collector states definitely that 
it is the eaate patta and that u contains the 
endorsements made by him on the former 
occasion ; the loarned Collector has not 
considered how a prosecution for forgery 
can be maintained when there is no brace 
of any alteration in the document. It is 
true that a certified copy was issued from 
the Collector's office on the 6th August in 
which the plot alleged to have been leased 
by the patta is described as within Khata 
No. 22G, Kheara No. 1227, while in the 
original document it is said to be within 
Khata No. 191 and Khesra No. 279. 
It is also true that iu the certified copy 
the word " Nij " appears and in the original 
patta contains the word " Khas ". The 
landlord denies that ha over gave any patta 
to the petitioner and his oaao is that 
the patta which is alleged to have been 
given in 1901, must be a forgery because 
the laud id dosjribud by the number given 
to it at the ruvisional survey which took 
place long after 1901. It is suggested that 
after taking baok oho document on or about 
the 20th August the petitioner altered tho 
revisional survoy numbers which were 
originally in tho document into tbe num- 
bers allotted to the land in the Cadastral 
Survey which took place before 1901 

Now thora ia no evidence to ahow that 
tbe numbers 22G and 1227 whiob appear 
in the oarfcifiad copy have any relation to 
the nuuibers 191 and 279 which now 
appear in the pabta and the object of alter- 
ing the patta is therefore not clear. More- 
over, if, as appears from the evidence, the 
opposite party was aware on the 21st July, 
1924, that the patta contained the Bevi- 
flional Survey plots and was 1 therefore a 



forgery, it is not understood why he did 
not bring that fact to the notice of the 
Sub-Deputy Collector on the 5th August 
but allowed tbe case to be withdrawn on 
the 20th August without demur ; nor is 
there any explanation why only six days 
later he asked that the documents by the 
petitioner should be attached. In my 
opinion the suspicious conduct of the 
opposite party has not been considered. 

The learned Collector relies upon the 
statements of his copying staff, but they 
do not really touch the case. It has not 
been shown that the document, which 
was given to the copying staff, was 
tbe document now under consideration. 
On the contrary as there are no 
marks of alteration on tbe document, 
the presumption is that it is not the 
document which was made over to tbe 
copying department for the issue of a 
certified copy. The petitioner suggests 
that the copying department ware in con- 
spiracy with the opposite party and inten- 
tionally inserted the revisional survey ploti 
numbers instead of the numbers on the 
document, but without going so far it is 
possible to hold that the copying depart- 
ment were deceived and that they copied 
out a document which was neither filed nor 
exhibited by tbe petitioner. 

There is another point which requires 
notice, The learned Collector was asked 
to proceed with the commutation case 
which is now ponding in order that the 
question of the genuineness of the patta 
might be determined before the criminal 
law was put in motion against the peti- 
tioner; but his order is that the question 
whether in fact the petitioner is a tenant 
or not should first be determined by the 
Criminal Court. This is a reversal of the 
ordinary procedure and oannpt be permit- 
ted. When a criminal offence is alleged 
to have been committed in the course of 
revenue or civil proceedings, the rule is 
that the facts, upon which the criminal 
offence is founded, should as far as possible 
be finally determined in tbe Civil or 
Revenue Court. Here the refusal to try 
out the commutation cane matfrially affects 
the criminal proceedings and amounts to a 
. denial of the right of fair trial. 'This Court 
is therefore competent to interfere under 
section 1Q7 of the Government of India Aot, 

There is a third point raised, 'namely, 
that the learned Commissioner was wrong, 
in declining to hear the appeal preferred by 



1986 



ANANT POTDAR V. MANGAL POTDAR. 



Patna 27 



the petitioner. I think the contention must 
be accepted. Section 476 B of the Criminal 
Procedure Code (appears to contemplate 
that if an appellate Court sets aside the 
order of the original Court, the party 
prejudicially affected has a right'of appeal 
to the Court to wbioh appeals from that 
appellate Court ordinarily lie. In this case 
therefore the Commissioner had jurisdiction 
to hear the appeal from the order of the 
Collector and to set it aside if necessary, 
and I am asked to direct that the criminal 
prosecution should not proceed till the 
Commissioner has disposed of the appeal. 
In my opinion it is not necessary to make 
any such order as I think I have jurisdic- 
tion to interfere under section 115, Civil 
Procedure Code and section 107 of the 
Government of India Act. I direct that 
the order of the Collector be set aside. 

The application is allowed but without 
costs. 

Application allowed. 



* A.I.R, 1926 Patna 27. 

MULLIOK AND KULWANT SAHAY, JJ. 
Anant Potdar and others Applicants 

v. 
Mangal Potdar Opposite Party. 

Civil Revision, decided on 20bh March, 
1925. 

(a) Civ, Pro. Code, 0. 41, r. 19-Apptal 
dismissed for failure to deport printing Costs- 
Application for restoration is one for review and 
not one under 0, 42, r, 19- Civ. Pro. Code, 0. 47 1 
r.l. 

' The words " (or any other sufficient reason " in 
r. 1 of 0. 47 will cover the oaee where there is a 
good ground for not filing the deficit printing oosts, 
and therefore an application to set a Bides dismissal 
of appeal for failure to file printing costs is one foe 
review and not an application under 0. 41, r. 19, 
[P. 38, Col. 1.] 

(b) Civ. Pro, Code, 8, 251 Section does not 
apply whenever no other remedy is open. 

B, 151 of the Code does not apply in every case 
ID which there IB no other remedy, A Court has 
DO inherent power to set aside its own orders when- 
ever it c boot es to do BO. [P. 98, Col, 1,] 

JSf. N. Hal for Muhammad Yunus for 
Applicants. 

Judgment: The* facts of this case 
are as follows : On the 20th November, 
1924, .this Bench made an order in First 
Appeal No. 86 of 1921 that unless the 
printing oosts were deposited within four 
days the. appeal should stand dismissed 



without further reference to the Bench. 
The printing oosts were not paid within the 
time prescribed and the appeal stood auto- 
matically dismissed on the 25f.h November. 
On the 18th December, 1924, an applica- 
tion was made by the appellant for permis- 
sion to pay the deficit oosts. The stamp 
affixed upon the application is one of the 
value of Rs. 3 which would be the proper 
stamp if the application were regarded as 
one under Order XLI, rule 19 of the Civil 
Procedure Code. If, however, the appellant 
is required to file an application for review 
of judgment, half the fee payable on the 
original memorandum of appeal is required 
and the application is insufficiently stamped, 
The earlier decisions oCthis Court pro- 
ceed upon the decision in Fatimunnissa v. 
Deoki Pershad (I) which held fchat an ap- 
plication to set aside a dismissal of an ap- 
peal for failure to file the necessary list 
must be regarded as one for review under 
Order XLVII, rule 1. This authority would 
seem to govern tbe present oaee also and 
has been followed in the following oases : 

(1) Civil Review No, 36 of 1916, decided 
on tbe 8fch June, 1917, by Hoe and Jwala 
Prasad, JJ. 

(2) M. J. C. 95 of 1918, decided on the 
20bb June, 1918, by Mulliok and Thornhill, 
JJ. 

(3) Review No, 31 of 1920, decided on 
the llth August, 1920, by tbe Registrar as 
Taxing-Officer. 

(4) M. J. C, 35 of 1924, decided on tbe 
30th May, 1924, by Das and Ross, JJ. 

(5) Review No, 16 of 1924, decided on 
the lOtb June, 1924, by tbe Registrar as 
Taxirjg-Offioer. 

On the other hand the following cases 
since 1923 have taken tbe view that the 
appeal can be restored by an application 
under Order XLI, rule 19, read with sec- 
tion 151 of the Oivil Procedure Code : 

(1) Review No. 35 of 1923, decided on 
the 19th April, 1924, by Jwala Praaad and 
Poster, JJ. 

(2) M. J. C. 24 of 1923 and Review 
No. 38 of 1923, decided on tbe 15fcb April, 
1924, by Jwala Prasad and Adami, JJ. 

(3> Review No. 30 of 1924, decided on 
the 20th November, 1924, by the Registrar 
as Taxing- Officer. 

If the decision in Fatimunnissa v. Deoki 
Pershad (1) is still good law, then the appli- 
cation under Order XLI, rule 19, does not 

(1) (189f) 24 Oftl. 850-1 C.W.N, 91 (P.BJ. 



38 Patna 



RAJ K18HORB LAL V. ALAM ABA BBGUM. 



1026 



lie. From the wording of the rule in question 
it is difficult) to see bow it oan be applied 
to a case of default otherwise than by non- 
appearance. It may be said that the Full 
Bench decision of the Calcutta High Court 
was made before the present Code of Civil 
Procedure when an order dismissing a case 
by default was considered to be a decree. 
But it does not appear that the change in 
the definition of a decree really makes any 
difference for the purpose of this case. 

What the party is really seeking is a 

reversal of an order, which, if it is not a 

decree, is certainly a judgment, and if the 

provisions for review do not apply, then 

there is no rnmfldy at all given by the 

Code: Order XLT, rule 19, certainly does 

nob seem to be applicable. We think the 

words "for any other" sufficient reason " 

in rule 1 of Order XLVII will cover the 

case whore theru ia good ground for not 

filing the deficit printing costs. If it does 

not, then the appellant has no remedy and 

we do not think section 151 of the Code 

become* applicable in every case in which 

there ia no other remedy. It does nob 

appear that a Court; has inherent power to 

set aaido its own orders whenever it 

olioosea to do so. 

The application has bo-day been stamped 
as an applioa&iou for review and &he nooes- 
sary deficit fee has be^n paid. Tbe fee 
will ba kopb in deposit aad notice will 
issue upon Lbe opposite parly bo show 
causa why the review should nob be 
allowed. 

Revision allowed. 



*A.I,R, 1926 Patna 88. 

ADAMI, J. 

Rajkishore Z/al, Nand-Kcolyar and others 
Petitioners 

v. 

Alam Ara Begum and another Opposite 
Party, 

Civil Revision No. 547 of 1924, decided 
on 23rd'M*roh, 1925, from an Order of the 
Munsif, First Court, Gaya, dated 17bh 
November, 1924. 



(a) J^im. Act, S, 2* (1) and (a) Di 
m*de co plaintiff after limitation Suit does not 
become barred. 

It ia olear from the provisions of sub-8, (9) 
of 8. 92 that the provisions or sub-S. (1) ot the 
Beofcioa will nob apply where defendant, who WAS 



made each by the plaintiff at the tima of the 
institution of the suit, is transferred in thit aoifc 
as a oo-plaintiff. [P. 38, Col. S.] 

* (b) Civ. Pro. Coda, 0. I, r. 10 Transfer of 
parties raiting value of subject-matter higher than 
Court's jurisdiction Court should add parties and 
return the plaint Civ. Pro. Code, 0. 7, r. 10, 

Where transfer of some co-defendants to the 
side of plaintiffs raises valuation of tha suit beyond 
the pecuniary jurisdiction of the Qjurt, the Court 
should not refuse the transfer. It should allow 
transfer and return the plaint foe presentation to 
proper Court. [P, 29, Col, 1,] 

Anand Prasad for Petitioners. 

Judgment : This application ia direct- 
ed against an order of the Munsif, First 
Court, Gaya, rejecting the application by 
the petitioners to ba made co-plaintiffs in a 
suit brought by the opposite party No. 1. 
The opposite party No. 1 sued to recover a 
sum of money from fcbe defendants STos. 1 
to 26 on account of certain expenses 
incurred by her in erecting and maintaining 
a bandh. It appears that the co-sharer 
malifaot village Lao and of several other 
villages have to ereafc bzndhs for tha pur- 
poses of irrigation in those villager. The 
maliks of village Lao supervises the erection 
of these bandhs and the other maliks 
contribute towards the expenses incurred. 
The suit related to the expenses incurred bv 
the opposite party No. 1 in the years 1329 
and 1331. She joined as defendants to the 
suit defendants Nos. 27 to 35, who are 
co-sharer maliks of Mouza Lio. The 
present applicants petitioned the lower 
Court; to be changed from co-defendants in 
the suit to co-plaintiffs. 

Tbe learned Munsif rejected the appli- 
cation on two grounds, firstly, that if these 
defendants were made co-plaintiffs, the rulo 
of limitation would come in and the plaint- 
iffs, suit would be barred wiih regard to 
the claim for 1329. The second ground was 
that the addition of these petitioners as co- 
plaintiffs would raise the value of the suit, 
beyond the jurisdiction of the Court. Now, 
with regard to the question of limita- 
tion, it is clear from the provisions of sub- " 
section (2) of section 22 of the Limitation 
Acb that the provisions of sub-section (1) 
of the section will not apply r where a 
defendant, who was made such by the 
plaintiff at the time of the institution of 
the suit, is- transferred in that suit as a 
co-plaintiff. Sub-seotion (2) clearly says 
that "nothing in sub-section (1) shall 
apply to A case. ..where a plaintiff is made 



1990 



SHAMSBBB KARAIH SINGH V. MOHAMMAD 3ALB 



Patna 29 



a defendant! or a defendant is made a plaint- 
iff," All that the petitioners have asked in 
this oase is that they being defendants 
should he made plaintiffs in the suit. 
Accordingly the Law of Limitation will 
not bar any portion of the claim. 

With regard to the other objection raised 
by the Munsif if the suit after the addition 
of these petitioners as oo- plaintiffs exceeds 
the valuation which is within the jurisdic- 
tion of the Munsif, it will be open to him 
to return the plaint, after the petitioners 
have been so added, to the plaintiffs to be 
presented in the proper Court. 
The order of the Munsif must be set 
aside and it is directed that the status of 
the present petitioners be changed from the 
category of defendants to that of plaintiffs 
in the suit. 

Order set aside. 



A.I.E. 1926 Patna 29 (I). 
ADAMI, j. 

Bam Charan Singh and another Peti- 
tioners 

v, 
Emperor Opposite Party. 

Criminal Revision No, 46 of 1925, deci- 
ded on 24th March, 1925, from an order of 
the Sessions Judge, Muzaffarpur, dated the 
4th December, 1924. 

Crtw. Pro. Code, 8. 312 Provisions are man- 
datory Non-observance vitiates trial. 

The provisions of 8. 84*2 are mandatory. The 
accused must be examined under 8. 342 after the 
prosecution has oloeed and before the accused have 
entered upon their defence and if the provisions of 
that section are not observed, the trial is vitiated, 
[P, 9, Col. 2.] 

S. M. Gupta for the Petitioners. 

Judgment : The only point taken in 
this application is the fact that the provi- 
sions of section 342 have not been com- 
plied with in the trial of the petitioners 
and, therefore, the trial and the convictions 
found against the petitioners are vitiated. 

It appears that the petitioners were not 
examined under section 342 until about 
two months had elapsed after the peti- 
tioners had Entered upon their defence. 
The learned .Sessions Judge holds that, as 
the defence could not be prejudiced in any 
way by the delay in examining the accused 
under section 342, the trial could not be 
held to be vitiated. It may be that the 
delay did not in fact prejudice the petition- 



ers ; but as has been often held by this 
Court, the provisions of section 342 are 
mandatory. The accused muat be examin- 
ed under section 342 after the prosecution 
has closed and before the accused have 
entered upon their defence, and if the 
provisions of that section are not observed, 
the trial is vitiated. In the Calcutta High 
Court the oase of Surendra Lai Shaha v. 
hamaddi (I) was a oase in which the 
circumstances were similar to those of the 
present case, and in that oase it was found 
that the trial was vitiated. 

The convictions of the petitioners must 
be set aside and it is directed that the trial 
of the petitioners must proceed now from 
the point where the prosecution closed 
their case. The petitioners must be 
examined as required by section 342 of the 
Criminal Procedure Code, and then be 
allowed to enter upon their defence. The 
fines, if paid, will be refunded. 

Conviction set aside. 

(I) A.I.R, 1926 Cal, 480-51 Cal, 933-36 Cr. L J, 
261. 



AIR 1026 Patna 29 (2). 
KULWANT SAHAY, j. 

Shamsher Narain Singh and others 
Petitioners 

v. 
Mohammad Sale Opposite Party. 

Civil Revision Nos. 441 and 442 of 
1924, decided on 27bb April, 1925, from 
an order of the Muusif, Bihar, dated 
16th September, 1924. 

(a) Civ. Pro. Code, 0. 9, r, 13 Application to 
set aside ex parte decree altow ed No rt vision lies. 

Where on nn application to eet aside an ex parte 
decree the Court considered (he evidenoe and 
decided that the applioant had no knowledge of the 
suit and that summonses were not served upon 
him and that he came to know of the decree with- 
in 30 days of the application and set asido the 
ex partc decree, 

Held, that no revision lay as it cannot be said 
that the Court committed any error, illegality oe 
irregularity withm the meaning of 8. 115. [P, 80, 
Coi. 2.] 

(b) Civ. Pro. Code, 0. 22, r. 4 Finding that 
a deceased plaintiff's heirs were not necessary 
parties to application to set aside ex parte decree is 
not revisable, 

. Where in a proceeding to set aside an tx parte 
decree the heirs of a deceased plaintiff were not 
made parties to the application, but the Court 
comes to the finding that it was not necessary to 
bring his heirs on the record, the finding cannot 
be interfered with under B, 115. [P. 30, Col, 2,] 



30 Patna 



SHAMSHBR N ABA IN 8LNQH V. MUHAMMAD SALB 



lose 



(a) Evidence Act, 8. 73 Copies of Bag liters in 
Native State are not admissible, 

Copies o( entries in registers kept by the officers 
of a Native Bute are not admissible in evidence 
having regard to the provisions of B. 78 (6), 
[P, 30, Ool, a,] 

(d) Oiv. Pro.Cvde, 8. 115 -Inadmissible evi- 
dence admitted Finding based on other evidence 
Finding not vitiated. 

Whore a Court erroneously holds that certain 
doourrnnta are admissible but arrives at its finding 
independently of auoh documents, its finding 
cannot be said to be vitiated by suoh admission. 
[P, 31, Ool. 1J 

S, N, Boy and A. H. Fakhruddinfat 
Petitioners, 

Hasan Jan for Opposite Party. 

Judgment : These two applications 
arise out of an order passed by the Munsif 
of Bihar setting aside two ex parte decrees 
on an application of the defendant under 
Order IX, rule 13 of the Civil Procedure 
Code. The decrees were obtained by the 
plaintiffs-petitioners on the 6fch of January, 
1920. These decrees were ex parte as the 
defendant did not appear and contest the 
suits. In execution of these decrees the 
holding was sold on the 18fch of May 1920 
and purchased by the plaintiffs. The 
sale was confirmed on the 18tb of June 
1920 and possession was delivered to the 
auction-purchasers en the 6th of July, 1920. 
The present applications in the two suits 
under Order IX, rule 13 of the Civil Pro- 
cedure Code were filed on the 9bh of 
January 1924 the allegation being that the 
defendant came to know of the decrees and 
of the sale for the first time on the llth of 
December 1923. 

The opposite party's case was that he 
was ia the territories of the Nizam of 
Hyderabad as he was in service there and 
returned home in April 1923, and he had 
no information of the institution of the 
suits or of the decrees, or of the execution 
proceedings or sale of the holding, The 
learned Munaif has considered the evidence 
in very greats letail and he has come to the 
conclusion that the opposite party had no 
knowledge of the suits and summonses 
were nob served upon him, As regards 
limitation he hu found that the opposite 
party came to know of the decrees and the 
sale within thirty days of the applications. 
There was another objection on the ground 
of limitation by reason of the fact that) one 
of the plaintiffs Taluka Prasad was dead 



and his heirs were brought on the record for 
the first time on the lObh of March 1924, 
and it was contended that so far as the 
heirs of Taluka Prasad were concerned, the 
applications were evidently barred by 
limitation. The learned Munsif has found 
that it was not necessary for the opposite 
party to bring the heirs of the deceased 
Taluka Prasad on the record inasmuch as 
all the plaintiffs were members of a joint 
Hindu family and the surviving plaintiffs 
represented the family. Upon these 
findings the learned Munsif baa granted 
the applications. 

It has been contended in revision that 
the learned Munsif was wrong in holding 
that the applications were within time, and 
secondly, that he was wrong in using in 
evidence, certain documents produced by the 
opposite party which were copies of attend- 
ance register and leave register kept by the 
officers of the Nizam of Hyderabad, which 
showed the presence of the opposite party 
at Hyderabad. As regards the question of 
limitation it has been argued that the heire 
of Taluka Prasad were necessary parties, 
and as they were not brought on the record 
within thirDy days of the date of knowledge 
of the decrees as alleged by the opposite 
party, the applications were barred by limi- 
tation. Now the learned Munsif has come 
to a finding that the other plaintiffs repre- 
sented Taluka Praaad and it was not 
necessary to bring his boirs on the record, 
The learned Munsif may be right or he 
may be wrong, bat there is no question of 
jurisdiction involved on this point. He 
was entitled to come to a finding on the 
question as to whether the surviving plain- 
tiffs represented Taluka Prasad and as* to 
whether the applications were barred by 
limitation and he did 00010 to the finding 
that) the applications were not barred 
because the heirs of Taluka Prasad were 
not brought on the record within thirty 
days. I am of opinion that it is not a 
question which oan be considered in 
revision under section 115 of the Oode. 

As regards the question relating to the 
admissibility of documents of the Hydera- 
bad State, it is clear that those documents 
ware not properly admissible hi evidence 
having regard to the provisions ,of section 
78, clause (6 of the Indian Evidence Act. 
Bat the learned Munsif does not base his 
decision apon those document^ only. 
Before referring to those documents, the 
learned Munsif had, upon the other evidence 



1086 



HARI SANKAB BA1 V. TAFAI KUBR (Mulliok, J.) 



Patna 31 



in the oaae, oome 60 the conclusion that 
the opposite party was absent from his 
home and summonses were not served 
upon him. The learned Munaif has, no 
doubt, not applied his mind to the con- 
sideration of the question as to whether 
these documents were admissible in 
evidence or not, but, even excluding these 
documents from the record, it appears 
from the judgment tbat there was sufficient 
evidence to enable the Munsif to oome to 
jt finding ou the question as regards the 
service of summonses. 

It was next; contended that the document 
marked Ex. F in the case (which was a 
compromise petition filed in a proceeding 
relating to the execution of a decree obtained 
by the opposite party against the peti- 
tioners) snowed conclusively that the 
opposite party had knowledge of the decrees 
and of the execution proceedings long before 
30 days of the filing of the present applica- 
tions. The learned Munsif has considered 
this compromise petition and has come to 
the conclusion that this petition was not 
filed with the knowledge of the opposite 
party. He has compared the handwriting 
and he has considered the other circum- 
stances connected therewith, and his finding 
on this document) is a finding of fact upon 
a consideration of the document. I cannot 
in revision say that the Munsif has 
committed any such error or any illegality 
or irregularity so as to affect his jurisdiction. 
There is no question of jurisdiction 
involved in these applications and they are 
dismissed with costs. There will be only 
one hearing fee, two gold mohurs. 

Applications dismissed. 

* A.I.R. 1926 Patna 3i. 

MULLICK AND ROSS, JJ. 

Hari Sankar Rai Appellant 

v. 

Tapaikuer Respondent. 

Appeal No. 185 of 1924, decided on 
5th March, 1925, from the Appellate Order 
of the District Judge, Saran, dated 19th 
May, 1924 % 

*C%v. Pro. Code, 0. 34, r.JJ Decree declaring a 
charge on c&r tain property of defendant Charge 
can be enforced in execution Separate suit is not 
necessary Execution Declaratory decree. 

It is npt necessary that in every oatfe where it is 

Bought to enforce a charge created by a declaratory 

- decree the parson for whose benefit the charge is 



created mast resort to the procedure for enforce- 
ment of claims under A mortgage. (2 P.L.J, 55, 
Foil.; 1 P.L.W, 69, Dist, and 92 Gal. 859, not 
Foil.) [P, 31, Col. 2,J 

Plaintiff obtained a decree declaring that she wag 
entitled to a certain maintenance allowance from 
the defendant to ba recovered from certain pro- 
perties belonging to the defendant. In execution 
of this decree the plaintiff made an application for 
the recovery of a certain sum on account of arrears 
of maintenance by sale of the properties charged. 

Held, that although the decree obtained by the 
plaintiff was declaratory in form it was capable of 
execution and the decree obtained by the plaintiff 
being a money decree the interest of the judgment- 
debtor in the properties charged with the payment 
of maintenance allowance could be sold in execu- 
tion of the decree. The provision of r. 14 of 0. 34 
of the Civ, Pro. Qode, did not apply to such a case. 
[P. 82, Oofc, 1&2.] 

Jadubans Sahay for Appellant;. 
B. B. Saran for Respondent. 

Muliick, J. : The deorea-hoider sued 
for maintenance and obtained a declara- 
tion that she was entitled to an allowance 
of Ba, 5 par monhh from the defendant 
and that certain properties belonging to 
the defendant were charged with the 
payment thereof. It is admitted bhat the 
decree created a charge within the mea- 
ning of soobion 100 of the Transfer of 
Property Act. Thereupon the plaintiff 
made an application in execution for the 
recovery of a total sum of Ra. 31-10-0 on 
account of her allowance for six months 
and some odd days. 

The Munsif dismissed the application 
and held tbat the plainbiif-deoroe-holder 
must bring a separate suit. 

In appeal the District Judge has taken 
a contrary view and directed tbat the 
properties charged should be sold in 
execution. 

In second appeal the first point taken 
ia that the decree being declaratory cannot 
be executed and that the only remedy of 
the deoree- holder is bo bring a separate 
suit. Now, although the deoree i declara- 
tory it clearly means that the maintenance 
allowance shall be recovered from the 
property charged ; and the question 
simply is what is the proper procedure 
for the enforcement of the relief. In my 
opinion there is no reason why recovery I 
should not be made by the agency of the 
Execution Court. Although neither the 
original deoree nor a copy of it baa been 
filed, it is clear from the recitals in the 
judgments of the Courts below that it is 
a deoree which was intended to be executed 



32 Patna 



KIBHOBB AHIB 0. KIHG- EMPEROR (Das, J.) 



1886 



and that it was nob the intention of the 
Trial Court to subject; the decree-holder to 
the expense of a separate suit;. Raja 
Braja Sundar Deb v. Sarat Kumari (l) is 
clear authority in favour of this view. 

Then it is urged that even if the decree 
oan he executed the plaintiff oannot bring 
the property to sale in the present execution 
and that ahe musb first sue under the 
provisions of section 67 of the Transfer 
of Property Act. The reply to this again 
is that Raja Braja Bunder's case (I) IB 
authority which binds us. On the other 
baud we have been referred to Gokui Nath 
Jha v. Pran Mai Marwari (2) as authority 
for the view that the execution oannot 
proceed and that a decree for the 
enforcement of a mortgage must be first 
obtained. It does not appear that the 
particular fcoint before us was directly 
raised in that case. In that case there 
was a mortgage bond in respect or the 
property charged and the Court held that 
as there was a separate bond which was 
capable of beicg enforced it was not open 
to the decree-holder to resort to the 
procedure of the Execution Court. There 
may have been observations in that case 
to suggest that the compromise decree 
oould not) be enforced otherwise than by a 
suit; but these observations were not 
necessary for the decision itself, 

We have also been referred to Abhoy v. 
Oouri Sunkur Pandey (3). There also a 
consent decree was sought to be executed 
and the properties secured were advertised 
for sale in the Execution Court. It was 
held in second appeal that the proper 
procedure was to obtain a decree for said 
as in a mortgage suit and that the 
execution oould not proceed. Now, in the 
first place this case is cot binding upon us 
in the face of the decision in Raja Braja 
Sunder Deb v. Sarat Kumari (1). In the 
second place with the greatest respect it 
seems to me that the claim now before us is 
not one which arises under any mort- 
gage and t.hat, therefore, tho provisions of 
rule 14 of Order 31, Civil Procedure Code, 
which prohibit the enforcement of a 
naortgagj except in the manner provided 
in the Code, do not apply here. It does 
not follow, that in every case where 



it is sought to enforce a charge the 
person for whose benefit the charge 
is created must resort to the procedure 
for enforcement of claims under a mort* 
gage. Section 99 of the Transfer of Pro- 
perty Act of 1882 has been repealed, and 
as the claim here arises out of a money 
decree there is no reason why the interest 
of the judgment-debtor should not be sold 
without a suit for sale. The provisions of 
rule 15, Order 34, are not in any way 
material to the discussion, 

The result, therefore, is that the appeal 
is dismissed with costs. 



Ross, J: I agree. 



Appeal dismissed. 



(1) (1917) 2 P.L.J, 55-3 P.L.W. 203-38 1.0. 

791*i9l7 P.H.0,0. 67, 

(2) (1917) 1P.L.W, 69-371,0, 397-1917 P,H, 

0.0. 371. 

(3) (1695) 22 Cl, 859. 



AIR 1988 Patna 32. 
DAS, J. 

Eishore Ahir and others Petitioners. 

v. 
King-Emperor Opposite Party. 

Criminal Revision No, 603 of 1924, 
decided on 25th November, 1924, against 
the decision of the Sessions Judge, Shaba- 
bad, dated 9th September, 1924. 

Grim. Pro, Code, S. 107 Scope. 

Two opposing parties la a dispute oannot be 
proceeded against under B. 107 in one proceeding. 
[P, 32, Ool. 2,] 

P. G. Rai for Petitioners. 

Das, J.: This application must succeed 
on the short ground that there was no 
power in the Magistrate to draw one pro- 
ceeding against two different factions,. 
The order of the learned Magistrate shows 
that he tried 53 men belonging to two 
different factions in a proceeding under 
section 107 of the Criminal. Procedure 
Code. It has been held in Kamal Narain 
Chaudhry v. Emperor (1), that the two 
opposing parties in a dispute oannot) be 
proceeded against; under section 107, 
Criminal Procedure Code, in one proceed- . 
ing. In accordance with this decision I 
allow the application and set aside the 
order of the learned Magistrate. 

Application allowed. 



(1) (1907) 11 C.W.N, 472-5 Or, L.J, 1975 
J. 231, 



1088 



BAIJULAL v. THAKDR PRASAD (Kolwant Sahay, J.) Fatna 3$ 



A.I.R 1986Patua 33. 

ADAMI and KULWANT SAHAY, JJ. 

Baijulal Manvari and another Peti- 
tioners 

v, 

Thakur Prasad Marwari and others 
Opposite Party. 

Civil Revision No. 60 of 1925, decided 
on 21st May 1925, from an order of the 
Sub- Judge, God da, dated llth December 
1924. 



Parganas Sfttltment Regulation (III of 
1872 >* S. 5 (2\- Execution proceedings ate " suit " 
within 8. 5-- Pending execution cases should not 
be dttwissfd tut should be transtened to officer ap- 
pointed under the Regulation. 

Execution is merely a continuation of the suit 
and proceedings in execution are proceedings in the 
puit. Therefore an application in a penrhng 
execution proceeding is a suit within the meaning 
of 8. 6. Where such an application is made the 
executing Court should not diemiab the application 
but should tricbier n for disposal to an officer, 
if any, appointed under 8. 5 (2) of the Regulation. 
[P. 84, Col, 1,] 

S. M. Mullick and L. K. Jhalor 
Petitioners. 

Juggernath Prasad for Opposite Party. 

Kulwant Sahay, J. : This is an ap- 
plication against an order of r.he Subordi- 
nate Judge, God da, dismissing the peti- 
tioners' application under Order XXI, rule 
100 of the Civil Procedure Code. The facts 
stated in the petition are shortly these : 

The petitioner brought a money suit 
against one Guruday al Baram and obtained 
a decree, and in execution thereof purchased 

5 .annas 6 pies share in two properties 
belonging to the judgment debtor, namely, 
in Ghat Lachmipur bearing Touzi No. 494 
and in Ghat Fauzdar bearing Touzi No. 
485, The petitioner's purchase is dated 
the 9th July 1918, the property having 
been attached on the 26bh March 1917. 
The opposite party NOB. 1 to 4 bad also 
obtained a money decree against Gurudayal 
Baram and they also applied for execution 
of their decree and in execution thereof 
they purchased the remaining 10 annas 

6 pies sham in each of the two ghats. The 
petitioner get delivery of possession of 
the share* purchased 'by him on the 
16th November, 1919. In the meantime it 
appears that the opposite party .Nos, 1 to 
4 had taken an assignment of an 8 annas 
share in a certain mortgage-bond executed 
by Gurudayal Baram in favour. of the 

*1926 P/5 &.6 



opposite party NOB. 5 to 7. A mortgage- 
suit was brought on the basis of that 
mortgage-bond to which the petitioners 
were not parties. It is to be remembered 
thai} the attachment in execution of the 
decree of the petitioners had taken place on 
the 26th March 1917 and the mortgage suit 
was brought on the 1st December 1918. 
It way, therefore, necessary unoer Order 
XXXIV, rule 1 of the Civil Procedure 
Code, to maka the petitioners parties to 
the mortgage suit inasmuch as under sec- 
tion 91, clause (/) of the Transfer of Pro- 
perty Act they had a right to redeem. A 
mortgage- decree was obtained on the 18th 
December 1918, and in execution of the 
mortgage-decree, the opposite party Nos. 1 
to 4 purchased the whole of the two ghats 
mentioned above on the 28th May 1923. 
They obtained a sale certificate and applied 
for delivery of possession and possession 
was delivered to them in respect of ghat 
Laohmipuron the 21st December 1923 and 
in respect of Ghat Fauzdar on the 23rd 
December 1923. As a result thereof, the 
petitioners say that they were dispossessed 
of the shares purchased by them. They 
accordingly made an application - under 
Order XXI, rule 100 on the 19th January 
1924. After various adjournments, this 
application came on for hearing before the 
Subordinate Judge on the llth December 
1924. On that date an application was 
made OQ behalf of the petitioners for time. 
This application was refused. The learned 
Subordinate Judge then rejected the appli 
cation under Order XXI, rule 100 on the 
ground that he had no jurisdiction to 
entertain the application on account of the 
provisions of section 5 of Regulation III 
of 1872. 

It appears that under a Government 
Notification, dated the 27th October 1923, 
the area within which the property in 
dispute is comprised was declared to ba 
under settlement from the 1st of November 
1923, and the learned Subordinate Judge, 
held that under the provisions of section 5 
of the Regulation he had no jurisdiction to 
entertain the present application* under 
Order XXI, rule 100, Civil Procedure Code. 
He accordingly rejected that application. 
Against this order, the petitioners have 
ocme up in revision to this Courr,; and it is 
contended that the Subordinate Judge was 
wrong in holding that he had no jurisdic- 
tion to entertain the application, and further 
be was wrong in rejecting tbe applioalioa 



34 Patna 



BAM 8ARAN SINGH t>. MOHAMMAD JAN KHAN 



1086 



without giving the petitioners an opportu- 
nity to substantiate their ease. In my 
opinion the contention of the petitioners is 
sound and ought to prevail. 

As regards the first point, namely, the 
applioation for time it is clear that because 
the petitioners' applioation for time was 
rejected, the learned Subordinate Judge 
was not right in rejecting their application 
under Order XXI, rule 100 without calling 
upon them to adduce evidence to substanti- 
ate their case. As regards the question of 
jurisdiction, the learned Subordinate Judge 
relies on the provisions of section 5 of 
Regulation III of 1872. Now this section 
provides that, " from the date on which the 
Lieutenant-Governor declares under sec- 
tion 9 by a notification in the Calcutta 
Gazette, that a settlement shall be made 
of the whole or any part of the Sonthal 
Par g an as until the date on which such set- 
tlement is declared by a like notification to 
have been completed, no suit shall lie in 
any Civil Gourd established under the 
Bengal, N.-W. P. and Assam Civil Courts 
Act, 1887, in regard to any land or any 
interest in, or arising out of land in the 
area covered by such notification ; nor shall 
any Civil Court proceed with the hearing 
of any such suit which may be pending 
before it." 

It has been contended that an applioa- 
tion in a pending execution proceeding is 
not a suit within the meaning of section 5. 
This contention does not appear to be 
sound, because execution is merely a con- 
tinuation of the suifc and proceedings in 
execution are proceedings in the suit. The 
question, however, is whether the applioa- 
tion of the petitioners ought to have been 
rejected on the ground that a notification 
as contemplated by the section had been 
issued by the Government. Sub-section (2) 
of section 5 provides that " between the 
dates referred to in sub- section (1), all suits 
of the nature therein described shall be filed 
before or transferred to an officer appoint- 
ed by the Lieutenant- Governor under sec- 
tion 2, of the Soothal Parganas Act, 1855 
or section 10 of Regulation III of 1872. 

In the present case if an officer had been 

appointed under sub-seotion(2)of section 5, 

then the Subordinate Judge ought to have 

transferred the applioation to that officer. 

It was a pending execution proceeding at 

the time when the notification was issued, 

and under sub- section (2i the , Court oould 

only transfer such applications to the 



officer appointed under sub-section (2) of 
section 5, and it ought not to have rejected 
the applioation on the ground of want of 
jurisdiction. 

The order of the learned Subordinate 
Judge will, therefore, be set aside and he 
will prooed according to the provisions of 
aub-section (2) of section 5 of Regulation 
III of 1872, 

There will be no order for costs. 

Adami, J, : I agree. 

Order set aside. 



A.I.R. 1026 Patna 34. 

FOSTER. J, 

Bam Saran Singh Petitioner 

v. 

Mohammad Jan Khan and another 
Opposite Party. 

Criminal Ravision No. 680 of 1924, 
decided on 6th January, 1925, from a 
decision of the Sessions Judge, Gaya, dated 
1st October, 1924. 

(*) Grim, Pro. Code, 8. 202~-Isau9 of process 
without recording reasons is not correct Cross- 
examination and arguments should not, as a rule, 
be allowed in a case of inquiry under S. 202* 

It IB certainly not. a correct procedure to defer 
the iauae of process and order an enquiry without 
recording reasons. It is also as a rule undesirable 
that the enquiry should be prolonged by cross- 
examination and arguments inter varies, the reason 
being that if thia IB necessary it is obviously 
advisable to follow the procedure of a trial and for 
that purpose to issue prooeaa atonoe, At the same 
time if a Magistrate having the duty of making an 
enquiry under 8 k J03 can make bis enquiry more 
complete and oan inform himself of the foots more 
lulty by having the accused in Court, there is ho 
reason either in common sense or in law why the 
ftoouned should not be called to the enquiry. 
[P, 35, Ool. 5i,] 

(b) Critn, Pro. Code, Si. 437 and X02~ Allowing 
cross-examination in an fnquiry under 8. 202 is a 
mere irrtgulwitv and further inquiry should not 
be directed Gtim. Pro. Code, 8 537. 

Cross-examination and arguments inter paries 
are out of place in an enquiry into the truth of 
the oomplaint. Such departure from the strict 
letter of the law eon j titup9 a mere irregularity 
and the High Court should not in the exercise of 
its discretion direct a further eno'iiry. 14 Gal. 
141, Dist. [P. 35, Col, 2.] 

P, G. De-tor Petitioner. 
Govt. Pleader and Aziz for Opposite 
Party. 

Judgment: The petitioner, Bam Saran 
Singh, filed a oomplaint on the 24th of 



1986 



BAM 3ARAN SINGH V. MOHAMMAD JAN KHAN 



Patna 3 



July, 1934, charging the Sub-Inspector of 
Worseleygao j and a constable of the Thana 
with offences under sections 342 and 504 of 
the Indian Penal Code. Possibly on the alle- 
gations as they were expressed, section 247 
I. P.O. would have been more applicable and 
the charge was of a serious nature. The 
burden of the complaint was tbat on the 
20th July the complainant; who was the 
newly appointed Sir Punch of a oirole 
within the Police jurisdiction was called to 
the Thana on official business connected 
with his office. When he got thera the 
Sub-Inspector informed him that he had 
bean accused by one Barhu Sahu of theft, 
and the Sub-Inspector put him under 
arrest refusing bail although Bam Siran 
Singh had with him a person ready to scand 
bail by name Santokhi Singh. The con- 
stable on the direction of the Sub- Inspector 
handcuffed the complainant and pui him 
in the hajut whare he was kapt from 9 A. M., 
on the 20oh till 9 P. M. on the 21st ; at that 
hour an order from the Magistrate for Ram 
Saran's release had been brought to the 
Thana. Oa this complaint the Magistrate 
passed the following order : 
' " I think a local enquiry by a First Glass 
Magistrate is necessary. Accordingly I 
direct a local enquiry under section 202 by 
a Magistrate of the First Glass from S*dar 
...Sand copy of the complaint and order to 
S. P." 

Later on, however, it appears that the 
Magistrate himself held a local enquiry, 
having previously notified to the Sub- 
Inspector wbo had been accused that he 
might ba uresent if he so desired. The 
enquiry lasted several days. On the 8th 
August 1924, the Magistrate dismissed the 
complain!; under section 203, Criminal 
Procedure Gode, giving nine reasons for so 
doing. In the Sessions Courb a petition for 
directing further enquiry was rejaooad in an 
elaborate order reviewing the oasa. It 
appears that in the Magistrate's Gourt the 
accused was allowed to be present to cross- 
examine the prosecution witnesses and to 
advance arguments. 

The petitioner comes to this Court with 
a prayer t^afe further enquiry be directed. 
His grievances ara (a) tbat the Magistrate 
did not record reasons when passing thd 
order under section 202, Criminal Proce- 
dure Code; (6! chat the accused* should not 
have baen allowed to cross examine the 
witnesses, and (c) that if the complainant 
had a prima facie case supported by sub- 



stantial evideaoa, the C^urt had no option 
but to issue process. It is certainly not a 
correct procedure to defer the usue of 
process and order an enquiry without 
recording reasons. It is also as a rule 
undesirable that the enquiry should be 
prolonged by cross-examination and argu- 
ments inter pirtes, the reason being that if 
this is necessary it is obviously advisable 
to follow the procedure of a trial and for 
that purpose to issue process at once. All 
the same time, it appears to me tbat if a 
Magistrate having the duty of making an 
enquiry under saot'on 202 can maka his en- 
quiry more complete and can inform himself 
of the facts more fully by having the ac- 
cused in Court, there is no reason either in 
common sense or in law why the accused 
should nob be called to the enquiry. Bub 
still I do not recede from the position that 
cross examination and arguments inter 
paries are out of place in aa enquiry into 
the truth of tha complaint. The questions 
are really first whether the departure from 
the strict letter of the law constitutes an 
illegality, and secondly, whether if it is not 
an illegality but a mare irregularity this 
Court should in the exercise of its discre- 
tion direct a further enquiry. Toe learned 
Vakil for the petitioner bas not put bafore 
ma any authority for the proposition that 
these departures from the letter of fthe law 
are other than an irregularity. Ha has . 
quoted a case of 1856 Baidya Nath Singh 
v. Muspratt (I). In that case fcliera was a 
complaint against the Assistant Superinten- 
dent of Police and other Polloa Officers 
and the Magistrate sent the complaint for 
enquiry to that Assistant Superintendent of 
Police. It is perfectly obvious tbat such an 
order was highly illegal and improper. Thafr 
is noc the case that is before ma now. 
Another owe quoted has besn Balai Lai 
Hooker jee v. Pashupati Chatter jee (2), In 
that casa the departures from the provisions 
of Oh. XVI of tha Criminal Procedure 
Oj-le ara described as irregularities and 
as procedure inconsistent with the 
schema of the Legislature. Tha ir- 
regularities there complained of were simi- 
lar to those now put forward by tha 
petition and the Court expressly held that 
it is a matter of discretion whether in such 
circumstances the Bale should be made 
absolute. That marks the point at which 

(li (1887J 11 O*i. 141. ' 

(i) (1916/24C.W.N, 137-25 C.L.J, 606-36 1.0, 
833 -17 Or, LJ. 396. 



36 Fatna BARHAMDEO RAI v. KING- EMPEROR (MaopbersoD, J.j 



1626 



authorities cease to have much weight, 
as each case must be decided on its own 
merits when we come to the question of 
discretion. ID the v resent case on a cursory 
glance I notice that most of the points on 
which the dismissal of the complaint is 
founded aro points that might have equally 
well been made by the Magistrate in the 
absence of the accused and the accused's 
Pleader. The aienneeal of the complaint 
appears to mo to he founded rather on the 
weakness of the prosecution case than oil 
the strength of the defence. The learned 
Sessions Judge gave great attention to the 
case and the length of his order is even 
made a ground of complaint by the learned 
Vakil for the petitioner. On the contrary 
it appears to me to be clear that the learned 
Sessions Judge appreciated the serious 
nature of the case and gave it careful 
attention, and I notice that be goes to the 
length of finding that tie complaint is not 
only untrue but even maiiciou*. In such 
circumstances it appears to me to be out of 
question to direct a further enquiry. 

The petition is ditmieseri and the Rule is 
discharged. 

Petition dismissed. 



A. I.E. 1926 Patna 36. 

MAOPHERSON, j. 

Barhamdeo' Bai and others Petitioners 

v. 
King -Emperor Opposite Party. 

Criminal Revision No. 136 of 1925, 
decided on 14th May, 1925, from an order 
of the Sessions, Judge, Shahabad, dated 
5th March, 1925. 

(a) Crim. Pro. Cods, S. 4M Accused 
convicted of one (fftnce thcugh facts fcund wiuld 
constitute mote itrious rfletct High Ciwt wtuld 
not interfere unless set twee s inaatquate or 
accused is deprived of right of apptal, 

Where a Magistrate ocuviots BD Hccupcd person 
of an offence falling wiflun HK jurisdiction though 
the lactp fc.ui.'d wruld also constitute a more 
serious cfitnce not \vitfcin bsB jurisdiction, his 
proceeding are uot void ab im'.'eo and tbe Hiph 
Court will not ordinarily interefere unless the 
sentence appears inndtquate or unices the accused 
has been deprived of tbe rifcht, c( appeal. 13 Bom. 
602 and 24 Mad, 675, c/, [P, 87, Col. 1.] 

(b) Penal C(de, S. 3?9Sirvant knr wing his 
master had no right to ccmplainani' a goods and 
assisting in removing, ccntmtls thtft. 

Where accused, a servant of co-aocueed knew 
perfectly well that his master was retocviBg the 



goods of complainant without even a pretence of 
right aim yet he assisted him in doing so. 

Held that tbe servant clearly acted dishonestly 
and was guilty of theft. 19 C.W.N. 974, Ditt.) 
[P, 37, Col. 1 ] 

(o) Witness- Cndib\litu W.tntss cf the same 
caste as accused no ground for dts btlitving him, 

It is not a eoutd ground for disbeliew^g a witness 
that he ie of the same caste or ccmnoumty as the 
person in whose favour be deposes. [P. 37, Col, 1,] 

2V. N. Sinha for Petitioners. 

Macpherson, J :- This is an applica- 
tion for revision of the conviction of the 
petitioners under section 379 of the 
Indian Penal Code and their sentences of 
fine. They were tried by a eeoond class 
Magistrate of Sasaram, an appeal against 
whose decision was dismissed by the 
District Magistrate of Sbababad, A motion 
against the appellate decision \vas rejected 
by the Sessions Judfe, Tbe petitioner 
Barhamdeo Bai ifi father of the other two 
petitioners and the fourth petitioner is hie 
labourer. 

The facts which have been found to be 
established are that the complainant 
was unwilling to continue the credit 
which he had formerly allowed to Barbam- 
deo Bai who resented the refusal. On 
the day of occurrence the complainant 
had brought to the front of Barhamdeo's 
house a bullock cart on which to carry 
home five bags of rice which he bad bought 
some time before from Deodbari Misshv 
The cart bad to be left at that point because 
tbe road became too narrow for it to pro- 
ceed. On the bags being brought Barham- 
deo and the petitioners removtd them from 
the cart to their house by force. Next 
day the police found tbe carfc in front of 
the house of Barhamdeo. 

Mr. Nirsu Naram Sinha has advanced ' 
the following four contentions .in support 
of the rule : 

(1) Tbe offence disclosed by tbe evidence 
which has been accepted by tbe Courts, 
amounts to robbery, and so a second class 
Magistrate cannot try it) ; 

(2) The defence of the second petitioner 
Gaya Bai was that he was ill and he exa- 
mined two witnesses in support of it, but 
neither the trial Court cor tbe appellate 
Court has discussed 'their evidence at all ; 

(3) The 4th petitioner beinn a servant of 
Barharndeo* cannot be convicted without a 
finding of guilty knowledge, and 

(4) The defence witness No. 3 who 
states that tbe cart found near Barhamdeo's 



4926 



JAGDIP SINGH V. HARK0 SINGH 



Patna 37 



door was sold by him to Barhamdeo 
has been disbelieved on the illegal ground 
that he is of the same caste as Barham- 
deo. 

As to the first point I am not prepared to 
-say that a charge of robbery oouid not 
stand. The evidence that the first peti- 
tioner or perhaps the first! three petitioners 
brought lathis seems to show that in order 
to the committing of the theft; the offenders 
voluntarily caused fear of instant hurt to 
the complainant and his oartman, but 
it has been held in Queen Empress v. 
Gundya (1> and Emperor v. Ayr/an (2) that 
where a Magistrate convicts an aooaued 
person of an offence falling within his 
jurisdiction though the facts found would 
also constitute a more serious offenoa not 
within his jurisdiction, his nrooeedingg are 
not void ab initio, and the High Court will 
not ordinarily interfere unless the sentence 
appears inadequate or unless the accused 
have been deprived of the right of appeal. 
There are many unraportod cases of the 
Calcutta High Court to the sama effect. In 
my opinion the petitioners having been in 
no way prejudice'!, the faot that they might 
have been charged with robbery is not a 
good ground for interference in revision 
with the conviction under section 379. 

As to the second point it would appear 
that this defence was not discussed be- 
cause it was not relied upon. Indeed tha 
point was not even taken specifically in the 
petition of appeal. 

The third point is supported by a refer- 
ence to the judgment of Woodroft'e, J- in 
Eari Bhuimali v, King Emperor (3). The 
circumstances are distinguishable. In that 
case the master of the petitioners had at 
least a colourable claim of right. In the 
present case the petitioner No. 4 knew 
perfectly well that his master was remov- 
ing the Bags of rice of complainant without 
even a pretence of right and yet he assist- 
ed him in doing so and therefore clearly 
acted dishonestly. 

As to the 4bh point it may at once be 

conceded that it is not a sound ground for 

disbeliavinga witness that he is of the same 

caste o( ootnmuaity as the person in whose 

favour he deposes. The defence adduced 

evidence in support of Barhamdeo's claim 

that the cart is his. The learned District 

Magistrate however aooepte^ the evidence 

(1) (1889) 13 Bom. 502. 
<2) (1901) 94 Mad. 676. 
:{3| (1901-05) 9 0,W.N, 974-2 Or, L,J. 836, 



as to the ownership of the cart adduced on 
behalf of the complainant. He states 
" The prosecution on the other hand have 
shown that the complainant's oartman, 
Bamdas Sundi, obatained the cart from 
one Kampati Koiri. There is no reason 
why the latter should have given false evid- 
ence and ha has given bis evidence in such 
a manner as to leave no doubt in my mind 
that he was once the owner of this cart ". 
In effect therefore the learned District 
Magistrate considers the whole evidence 
of both sides as to the ownership of the 
oart and on a substantial ground prefers 
the evidence given by lUmpati Koiri. Id 
is urged that the appellate 'Court has also 
not discussed specifically the evidence of 
the first and fourth defence witnesses as to 
the first appellant having a oart, but on 
perusing their depositions I am not im- 
pressed with their testimony and apparent- 
ly it was not thought worth while to 
place it before thu District Magistrate, tha 
question being whether the evidence of 
defence witness 3 or that of Raoidas and 
Rampati t should ba believed. It is not 
shown that the evidence on behalf of 
petitioners has not bean adequately con- 
sidered or that tha decision of the Courts 
below is wrong on the merits. 

In my opinion none of tha grounds urged 
in support of tha rule are woll founded. 
The rule is accordingly discharged. 

Rule discharged. 



A.I.R. 1926 Patna 37. 

MULLICK AND ROSS, J J, 

Jagdip Singh and others Petitioners 

vs. 

Harku Singh and others Opposite 
Parties. 

Civil Revision Case No. 419 of 1924, 
decided on 5th May, 1925, from an order of 
the Additional District Judge, dated the 
31st July, 1924. 

Government of India Act t 8. 1Q7 Er-parte 
decree Application for restoration Application 
decided according to law High Cnurt, will not 
interfereCiv Pro. Qode, 0. 9, r. 13. 

Unices a case of dental nf the right o! fair trial 
can be m%de out High Court will riot interfere 
under 8. 107 of the Government of India Aot, 
Where the Court determines according to law the 
question of faot whether sufficient cause baa been 
made out there oan be no denial of the light of 
Uir. trials [P, 38, Ool, 2j 



98 Patna 



JAGDIP SINGH V. HABEU SINGH (Mullick, J.) 



1886 



Sultan Ahmed, for Hasan Imam and 
Messrs S N. Rai and Raghu Nandan 
Prasad ~ for Petitioners. 

Alt Imam and Sambu Sarantor Op- 
posite Parties. 

Mullick, J. : The strife was instituted 
ontbeSlht March, 1921 and the Com- 
missioner 'H report was received on the 
18th July, 1922. Thereafter adjournments 
were t& ken by both sides and the Slat 
August was fixed for hearing. On that 
date the parties were not ready and the 
15th October was put down for " per 
emptory bearing." The parties again 
applied for time and the 4th December 
was fixed for final disposal. On that day 
the plaintiffs applied for time but were 
refused. The defendants of whom there 
were 21, were also not ready and as their 
Pleader Babu Paras Nath, who had been 
instructed from the beginuing and who 
should have conducted the case, was not 
present, they engaged a new Pleader 
named Babu Sbyamaldas Ghakravarty who 
applied for time. The Court was willing 
to give three days in order to enable 
him to prepare the case, but this oiler 
was nofc accepted by the Pleader and he 
retired. Thnroupon the Court bepan the 
examination of the plaintiff*' witnesses. 
At 2 r. 11. nfuor two witnesses had been 
examined Babu Paras Nath appeared and 
applied for an adjournment. The Court 
was willing fc o give one day if the defen- 
dants paid Rs. 10 as adjournment costs to 
the plaintitts. Babu Paras Nafh declined 
the offer and retired from the case. The 
examination of the witnesses then proceed- 
ed and vviis concluded the same day. 
Judgment was reserved and on the 7th 
December tho case was finally disposed of 
and an ex-par le decree was made against 
the defendants. 

An application was then made to the 
Subordinate Judge for restoration but with- 
out success. 

There was then an appeal to the Addi- 
tional District Judge cf Monghyr, but he 
also found that sufficient cause had not 
been shown for restoring the case. 

The present application is made in revi- 
sion. 

It is quite clear that section 115 of the 
Civ. Pro. Code does not give us any power 
to interfere. The Court below has exer- 
cised its discretion and no question of juris- 
diction arises. 



Bat it is contended that we have wide 
powers under section 107 of the Govern- 
ment of India Act and that there has been 
a denial of the right of fair trial. Here 
also the petitioners must fail, for it is 
not even suggested that the application 
for setting aside the ex-parte decree 
has not been properly tried. The Court 
determined according to law the question 
of fact whether sufficient cause had 
been made out by the defendants and 
it is not clear how there can have been 
any denial of the right of fair trial. The- 
following cases were cited on one side 
or the other, but it does not appear that 
any of them deals with a decision under 
Order IX, rule 13 of the Civil Procedure 
Code, Siva Prosad v. Tncomdas Cover ji (1) 
Parmtshwar Singh v. Kailaspati (2) 5 , 
Ganga Prasid v. Nandu Bam (3), 
Kumar Chandra Kishore v. Basat AH (4), 
Brindaban Chander v, Gonr Chandra (5), 
Sheo Prasad Singh v. Shukhu Mahto (6), 
Mam Lai v. Durga Prasad v7), and Sarju 
Bala Debi v. Mohim Mohan Ghose (8), 
The general principle is contained in the 
Full Bench case of Parmeshwar Singh 
v. Kailaspati (2), and unless a case of a^ 
denial of the right of fair trial can be 
made out this Court will not interfere. 
I think, therefore, that we are powerless 
to interfere under section 107 of the 
Government of India Act. 

But apart from this legal difficulty the 
application of the petitioners has no merits. 

Now, the first ground urged for the 
failure of the defendants to conduct their 
oabo is that one of them named Sukar 
Sinph had been put into jail. Now, it 
appears that Sukar Singh was sentenced 
to a term of rigorous imprisonment for 
four years about 12 or 13 days before the 
4th December. As bis trial must have 
taken eome time, it is not explained why 
the contingency of his being sentenced was 



(1) (1915) 42Cal. 9*6-27 I.C. 917. 
(9) 0916) 1 P.L.J. 8b6-l P.LW 95-351,0. 
801- 1917 P.H C.C. l17Cr. L.J 869 ,F.B.) 

(3) (1916) 1 P.L.J. 465-20 C.W.N. 1060-37 

I.C, 1519-8 P.LW. 65. 

(4) 091R) 99 C W.N, 62744 I. C. 768-97 

CL.J 118. 

(6) (19*0) 1 P.L.T. 467-66 I. 0, 155-1920 
P H.0,0, 56. 

(6) A.I.B. 1998 Patna 518-4 P,L T. 401-1 

Pat, L.R 89. 

(7) A.I.B. 1994 Patna 673-3 Pat, 980-5 P.L.T. 

495-1&24 Pat. 254, 

(8)A,1. 1925 Cal, 204-40 O.L.J. 191 -Sfc. 
C.W.N, 991. 



1086 



JAGD1P SINGH 0. HARKU SINGH 



Patna 



not provided against. Nor is it explained 
why the other defendants oould not prose- 
cute their oases without his assistance. If 
it is said that he had been looking afber 
the case previously, then some explanation 
should have been given as to what steps 
the other defendants took after he was put 
into jail to arrange for the conduct; of tha 
case. No evidence is forthcoming on this 
point. Moreover the defendants are in 
possession of separate holdings of which 
the plaintiff is seeking to take posses- 
sion. They do not constitute a joint 
family and most of them have filed 
separate written statements. The defendant 
Siri Singh was present in Court on the 4th 
December and ito is not shown why he 
oould not have instructed the Pieader. The 
allegation that the defendants were help- 
less without Sukar Singh has been found 
by both Courts below to ba unfounded and 
no fresh materials have been placed before 
us in support of it. 

The nexfc ground is that Babu Paras 
Nath was not in Monghyr when the oasa 
was taken up on tbe 4th Docember. There 
is no explanation as to when be left 
Monghyr anc why be wan absent on the 
4th December. If the defendants were 
really intending to go on with the case, 
they would have given evidence to show 
that they came to Monghyr in proper time 
and that in spite of due ciilligenoe it was 
impossible to instruct another Pleader. I 
agree, therefore, that thu evidence does no'i 
show that the defeuciants made any effort 
to be ready. As for the Pleaders engaged 
in the case, I can understand that Babu 
Shyamaldas sbouid not have been willing 
to undertake tb case with a three days 
adjournment, but Babu Paras Nath did 
arrive at 2 p. M. and bis conduct seems 
altogether unintelligible if the defendants 
were really 'anxious that he should proceed 
with it. It is not; understood why he gave no 
explanation for bis latd arrival and why he 
refused the one day's adjournment! that the 
Court offered. Although the case had been 
pending for over 18 months, no summonses 
had been issued to ary witnesses for the de- 
fence and it would, therefore, appear that 
the defendants were able to bring the wit- 
nesses whenever they liked. Why did they 
not bring a single witness with them on the 
date of hearing? Again the Cpurfc below 
finds that? there was sufficient time to send 
a man by train to Bamobanderpore and to 
fetch the witnesses by the 5th or the 



morning of the 6th December. Why did 
the defendants not do this ? Why again 
did they not instruct Babu Paras Nath to 
go on with the cross- examination of the 
plaintiffs' witnesses, for in that case the 
defence witnesses would, it seems have had 
quite enough time to arrive before the cross- 
examination was closed. 

Then it is said that the defendants 
required time to file certain documents. 
The case was pending 18 months and 
obviously it is quite impossible to accept 
this as a ground for adjournment. The oasa 
turned principally upon the Commissioner's 
report and this had been filed in July. 

The defendants appear to make a grie- 
vance of the fact that Babu Paras Nath 
was not allowed even the'tbree days ' time 
which was offered to Babu Shyamaldas. 
The explanation of this is quite clear. Babu 
Shyamaldas was new to the oate and, 
therefore, required time to read the brief, 
but that did not apply to Babu Paras 
Nath who had been in it from the begin- 
ning. Moreover the examination of the 
plaintiff's witnesses having commenced, 
the Subordinate Judge was right in not 
interrupting it for long. 

Why the defendants failed to make any 
contest after the case had been pending so 
long, it is of course impossible to explain 
with any certainty and it may be that, as 
is suggested, both parties had agreed that 
they would not have the case beard on the) 
4th Docember. It is quite impossible, 
however, to carry on public business if such 
arrangements are to prevail and to allow 
the impression to grow that the High Court 
will always come to the aid of a defaulting 
suitor. 

It is finally said that about 200 bighas 
of land are involved and that the defen- 
dants will lose their holdings. It seems 
that they are raiyats without any right of 
occupancy who claim under a proprietor 
from whom the plaintiffs have got a title 
by transfer. Tbe defendants are interested 
in separate plots and there is no reason 
why some of them at least oould not have 
carried on the case if they had* a good 
defence. The view of the Courts below 
seems to have been that the defendants 
were throughout adopting an obstructive 
attitude and the failure on the 4th December 
was merely a part of their general policy. 
That may be so. But whatever the real 
reason, sufficient cause has not been shown, 
for restoring the case. 



40 Ptttna EADHB LAL fl. BAST INDIAN RAILWAY (Mnlliok, A.C.J.) 



1886 



I would dismiss the application with 
osta : hearing fee two gold mohurs. 

Ross, J. : I agree. 

Application dismissed. 

* AIR 1926 Patna 40, 

MULLICK, A.C.J. and KULWANT SAHAY, j. 

Badhe Lai and another Plaintiff a- Ap- 
pellants 

v. 

East Indian Railway and others De- 
fendants-Respondents. 

Letters Patent Appeal No. 16 of 1925, 
decided on 15t.h July 1925, from a decision 
of Das, J, dated 18th December 1924, 

(a) * Ciu, Pro- Cads, 29, r. 2 -Suit against 
Railway Company -Proper name to ^e d**cribed is 
the one under which it tarries on business If 
through error Agent is made defendant and not 
the company and company is real defendant Suit 
may proceed against company* 

lu A Butt uKAirjst >* r eg into reel corporation it 
should be described by itfi official niDin and Li>le, 
In thn o*se of an unincorporated or unregistered 
Company the numes of the individuals must be 
fliveu, or the ordinary name by whioh the Com- 
pany is known and under whioh it carries on its 
bupine.iH In the OWHH of a Riilway Company the 
proper nurm und-r whmb the Company should be 
sued 18 the name and (Uyla under whioh it carries 
on its business. If the plaintiff deliberately 
chooses to sue not the Company bus the Apeut he 
cannot by any deoree wh'oh bu obtains in the suit 
bind the Onmpiny. If, however upon a fair read- 
ing of ihe pUmt, it is made out that the descrip- 
tion of the defendant is u mere error and that the 
Oompiny is tbo real defendant thea the fluifc miy 
proceed against the Compauy. [P. 42, Ool, 1.] 

M urari Prasad for Appellants. 
N. C. Sinha for Respondents. 

Mullick, A,Q. J On the Hbh January 
1922 the firm of Kalu Ram-Brijmohan 
of Bombay consigned three bales of cloth 
by Railway to the firm of Bamial-Laohman 
Rain of Shttikhpura in the District of 
Monghyr. While the goods were in transit 
the latter firm assigned them to the present 
plaintiffs Rvdho Lai and Ganga Prasad. It 
is admittei that delivery was to he made 
at Shaikhpura by the E*af. Indian Railway 
Company. On the 9ih February 1922 the 
Company in question delivered only one 
bale and on the 24fcb Ootober, 1922, the 
plaintiffs lodged a suit before the Munsif 
of Jamui claiming compensation from fche 
Agent of the East Indian Rail Way for the 



loss of the two bales. The firm oi Ramlai- 
Laohman Ram were sued as pro forma. 
defendants. 

The plaint whioh was filed on the 24th 
October was not properly stamped and 
was returned to the plaintiffs. On the 
28fch October the plaint was re-filed with 
a proper Gourt-fee and was accepted. 

On the 21st November, 1922, the East 
Indian Railway appeared and asked for 
time to file a written statement. Time 
was granted and the written statement was 
filed on the 3rd January 1923. 

After various adjourn mentis the case was 
taken up on the 13fch December, 1923. The 
defendant Railway then took a new ground 
and urged that the suit was incompetent 
against the ^gent and that if it was soughb 
to substitute or add the Company, the time 
for doing BO had expired. The Munsif 
accepted this argumanb and held that tha 
frame of the suit* was had and made a 
decree in favour of the defendants. 

The plaintiffs then went on appeal to the 
Subordinate Judge of Monghyr who on 
the 21st July. 1924, set aside the Munsif'a 
order and remanded the suit for trial on 
the merits. 

A second appeal was then preferred to 
the High Court and on tho 18feh December, 
1924, Mr. Justice Das disagreeing with the 
Subordinate Judge restored the order of 
the Munsif and dismissed fche suit, 

The present Letters Patent appeal is 
against the order of Mr. Justice Das. 

The learoed Judge relying on the da- 
oipiona iu Stnehi Ram- Bihar i Lai v. Agent t 
East Mian Railway Co, (1) and East 
Indian Railway Co. v. Ram Lakkan 
Ram (2) h Id that this was a case brought 
against* the Agent of the Railway and nob 
the Railway Company and that the plaint- 
iffs were not entitled to any relief againad 
the Qompan-r, and the learned Judge laid 
down his view of the law in the following 
words : "In my opinion when there were 
two known persona in existence and the 
plaintiff brings the suit against one of 
them and afterwards applies to have the 
other brought on the record as a defen- 
dant on the ground that hs all along 
intended to sue the other and that in 
substance he sued the other, anil no ques- 
tion of representation arises in the case, 
it ig impovihlfl to maintain the view that 

(1) 64 I. 0. 136 ; U P.L.T. 679. 

(2) (1925) A.I.B. (Pat.) 37-78 I. 312 ; 3 Pa*. 

930 ; 1994 P.H.0,0. 9-6 P.ti.T. 415. 



1986 



RADHE LAL 0. EAST INDIAN RAILWAY (Mulliok, A.OJ.) PatOE 41 



the oase is one of mig-deaoription." There 
is no reason for dissenting from (this state- 
ment of the law. Ifc has been accepted in 
other oases and also recently io Agent, 
Bengal Nagpur Railway y. Behan Lai 
Dutt (3). Tbe question now before us de- 
pends not upon the correctness of the pro- 
position as stated above but upon its appli- 
cation to the facts of this oase. Was the 
suit against the Bill way in substance or 
not ? If it was a suit against the Agent, 
then obviously no relief can be given 
against the Railway Company but the 
poinb is whether upon a consideration of 
the plaint and the circumstances of the 
oase it is possible to hold that in truth and 
substance the plaintiff sued not the Agent 
as a designated person but the Railway 
Company as a corporate body, That is a 
question of fact; and must ba decided upon 
the evidence in the oaae. The decision in 
the other cases cannot, therefore, be any 
guide. Now the view that the learned 
Subordinate Judge took in appeal was that 
bbe suit was in substance one against the 
Railway and that it wae competent to pro- 
seed. Thia is a finding of fact which is con- 
clusive in second appeal but; its is urged on be- 
half of the respondent before us that there is 
no evidence to support) it. Ik is necessary, 
therefore, for us to see whether there was 
any evidence upon which the learned Judge 
was competent to coma to the conclusion 
that this was really a case of mis-descrip- 
tion, 

In order fco coma to a finding upon this 
point it is necessary to see what the plaint- 
iffs did. In their plaint they describe the 
firatparty defendant as the "Agent of the 
East Indian Railway." In para. 5 they 
state that the two bales were lost when 
in the custody of the defendant first party, 
In para 6 they state that they made the 
demand to the AgenD. In the relief portion 
they pray for judgment against the defend- 
ant first party as " Agent of the East 
Indian Railway Company," In their ap- 
plication of the 24tb Ootober, 1922 asking 
for issue of process they describe the defen- 
dant not as Agent bub as the East Indian 
Bailway Company, la filing the deficit 
Court-fee wich their pUint on the 28th 
Ootober they againrep^at tbis description, 

Let us now see what the defendant did. 
The defendant who appeared qn the 2 1st 

,{3) A.I.R, 1925 C*I. 716-901, 0, 426 -390, W. 
N. 614-690. 783. 



November, 1922 was not the Agent but 
the Company. The defendant who filed 
the written statement on the 3rd January 
was again not the Agent, but the Company 
and no objection was taken to the com- 
petency of the suit until the 1 2 t,h December, 
1923. It is poiotdfi out by thc< appellant 
that if that ground had bean taken at the 
earliest moment* the error oould easily have 
been remedied within the period of limita- 
tion which appears to have not expired till 
about February 1923. Iia reply it ia urged 
on behalf of the respondent that para. 1 
of the written statement doos take the 
objection. That paragraph runs as fol- 
lows : That the suit as framed is not 
maintainable." It is clear, however, from 
the fact bhattha Railway Ojmp any appeared 
on tha 21st November and also filed a 
written statement that thi* ejection had 
reference, not to the designation of tha 
defendant but toother grounia upon which 
the suit of the plaintiff'^ was liable to fail. 

Lst us next pee what the Court did. 
In the order sheet ih describes the suit 
as one between Radhe Lil, olaintiffa and 
the East Indian Railway Oomnany and 
others defendants. On the 2 1st November, 
1922 the Court accepts a petition from tha 
Railway Company for time and on tha 
3rd January, 1923 it accepts the written 
statement not from the Agent but from tha 
Company. It is true that prooens was 
issued upon the Agent but that was clearly 
in consequence of tiho provisions of Sao- 
feion 140 of the Indian Railways Act. 

It is clear, therefore, that the plaintiffs 
the Com pan* and the Court till the 13th 
December, 1923 all thought that the suit 
against the Ageat was but against tha 
Railway Company. 

Is this, therefore, a oase in which tha 
plaintiffs have deliberately chosen to pro- 
ceed not against the principal but his 
servant? Clearlv the plaint differs from 
that in E>ist Indian Railway Company v. 
Ram Lakhan Ram (2) for here in the 
prayer portion the plaintiffs claim against 
the defendant first party as Agent and they 
make it clear that they depira to prooeed 
against the corporation and not against the 
Agent in bis personal capacity. 

In my opinion the faot.R of Um oase ara 
suoh that the deoiaion in E \st Indian Rail' 
way Company v. Ram Lakh in Ram (2) has 
no application. 

There was evidence on which the Sub- 
ordinate Judge oould find that this was a 



42 Patna 



MT. WAJIBUNNIS8A BBGUM V. BABU LAL 



198* 



oaee of mis-description and his finding is 
conclusive. 

The appellant also urges that the Muneife 
orders of the 2lafe November, 1922 and of 
the 3rd January 1923 are really orders 
substituting tbe Bail way Company as a 
defendant in the suit. Order I, rule 10 
of the Civil Procedure Code, would, there- 
fore, apply and no question of limitation 
would arise, Ifc is true that no formal 
amendment of the plaint was made. This 
should have been done but the omission 
was an irregularity and I do not thick it 
vitiates the order of the Subordinate Judge. 
With regard to tbe general question 
as to what IB the correct way of designating 
tbe defendant in a claim against a Railway 
Company the point has been argued but it 
is unnecessary to deal with it in detail. 

Tbe Civil Procedure Code, 1882 and tbe 
present Code both contemplate that a re- 
gistered corporation should be described 
by its official name and title. In tne case 
. of a unincorporated or unregistered Com- 
pany tho names of the individuals must be 
given or tbe ordinary name by which the 
Company is known and under which it 
carries on its business. There are companies 
constituted by Suture which are permitted 
to eue or bo sued in the name of an officer or 
trustee. A fo this claae provision is made 
in Rection 435 of the Code of 1882 but Order 
XXIX of the present Code of 3908 is silent. 
The omission, however, is remedied in the 
Appendix to the Cede which makes it clear 
that this class of Company may be sued 
through the desi^nateii officer. Therefore, 
in the case of the Ensb Indian Kailway the 
proper tuitrio under which the Company 
should he sued ie the name and style under 
which it carries on its business. A suit 
against the A^ent would be incompetent 
and would fix no liability upon the Com- 
pany. The Company has no registered 
office in India but the Indian Railways Act 
provides that an officer rained the Agent 
may bo appointed in India upon whom 
service may bo made of all notices and 
processes addressed to the Company. The 
appointment of euoh an officer, however, 
does not in any way relieve the plaintiff of 
tbe duty of suing the proper person and 
of correctly describing him, 

If a plaintiff deliberately chooses to sua 
not the Ccmpany but feha Agenb he cannot 
by any decree which be obtains in the suib 
bind the Company. If, however, upon a fair 
reading of the plaint it ia made, out that the 



description of the defendant is a mere ' 
error and that the Company is the real I 
defendant then tbe suit may proceed 
against tbe company. 

Here the Railway did in fact appear and 
conducted the cases till the 12th December 
1923 on the footing that they were the real 
defendants in tbe suit. 

In these circumstances the judgment of 
tbe learned Judge of this Court must be 
set aside and the appeal must be decreed 
with costs, The order of the Subordinate 
Judge will be restored and the case will 
proceed to trial as directed by him. 

Kulwant Sahay, J. : I agree, 

Appeal accepted. 



A I.E. 1926 Patna 42, 

DAWfcON-MlLLKR, C.J., AND 
MACPHKKtiON, J, 

Mt. Dili Wajibunnissa Begum Plain- 
tiff-Appellant.. 

v. 

Babu Lai Mahton and others Defen- 
dants Respondents. 

Second Appeal No, 1070of 1922, decided 
on 18ih June 1925, against the decision of 
the bub Judge, P&tna, dated 12th June, 
1922. 

(a) Btngal Tenancy Act 11885), S. 46, Sub-8. 7 
lit HI. at tnhanctd iait is payable jrcw ihe dtu* 
of acceptance of agietment, 

The enhanced rent is payable by tbe tenant from 
the date vtheu be agreta to ph> the rent deter- 
mined by ihu Couu. Although Sub 8. (7) does 
not in terms eay from what date ihe enhanced 
rent should be pajable yet, as his liability to pay 
the enhanced rent only arises by reason ot ma 
agreement, it eeema impossible 10 bold that be 
WrtH under any liability to pay cent at the enhanced 
rate before thut date, [P. 46, Col. 1 ] 

(b) Btngal Tenancy Act U&65), S 61 Bonafide 
deposit of whole amount is fail a ih^ugh in tact- 
less than due. 

Where there has been a Bona fide deposit in 
respect of the whole amount due at the date ol tbe 
deposit and not merely in respect of a portion 
thereof, tba deposit IB validly made under the 
section, even though it should turn out that tba 
whole amount due bad not been .deposited. 20 
O.L.J. 153, Foil. [P. 46, Col. 1,] 

S, Ahmed, G. Das t A. L. Das % Gupto t 
A. H. Fakhruddin, K. Husnam and N. 
Husnain-v-lor Appellant. 

P, 0, Manuk and A. N. Das for Bes- 
pondenta. 



\926 MT, WAJIBUNNISA BEGUM v. BABU LAL (Dawson Miller, G J.) Patna 13 



Dawson-Miller, C. J: The suit out of 
wbioh this appeal arises was instituted by 
the Plaintiff on the 4th May 1921 claiming 
rent from the Defendants in respect of 
a holding of 7 bighas 5 cottas of land in 
Patna for the years 1325 to 1327 F. and 
for the Pous and Chaifi kists of 1328 F. 
together with damages at 25 per cent, per 
annum. The rent was claimed at the rate 
of Ks. 252-13-0 per annum, 

The main defences to the action were 

(1) that the amount of rent recoverable 
was Bs 102 per annum and that for the 
years 1325 to 1327-F. the rent at that rate 
had been deposited in Court under the 
provisions of section 61 of the Bengal Te- 
nancy Act and a receipt obtained under the 
provisions of section 62, sub-section (2) and 
that the rent claimed for 1328 F. was not 
pay able until Bbado in that year correspon- 
ding to September 1921, wbioh date bad not 
arrived when the suit was instituted, and, 

(2) that tbe suit was barred by limitation 
under the provisions of Schedule III, 
Article 2 (a) of the Bengal Tenancy Act, 
having been brought more than six months 
after tbe date of service of notice of the 
deposit. 

It appears that in 1917 the Plaintiff 
attempted to eject the Defendants as 
trespassers but it was decided by tbe High 
Court in April of that year that the status 
of the Defendants was tbat of non occu- 
pancy raiyats. Tbe rent tben payable was 
Es, 102 per annum, On the 13th July, 
1917 the Plaintiff filed in Court an 
agreement under the provisions of 
section 46 of tbe Bengal Tenancy Act for 
the payment of an enhanced rent at the 
rate of R. 379 per annum and on tbe 18th 
July, 1917 (9th Sawan 1324) the agreement 
was duly served on the Defendants. The 
Defendants refused to execute tbeagreement 
and on tbe 5th November, 1917 the Plaintiff 
instituted a suit before tbe Muneif of Patna 
for ejectment of the Defendants under 
section 46 16) of the Act. Under the provi- 
sions of sections 46, eub- sections '6 to (10) 
if tbe raiyat refuses to execute an agreement 
tendered to him under tbe earlier provisions 
of the section^ and the landlord thereupon 
institutes a suit to eject him, tbe Court 
shall determine what rent is fair and 
equitable for the holding. If the raiyat 
agrees to pay the rent so determined he 
shall be entitled to remain in occupation of 
bis holding at tbat rent for a term of 5 
years from the date of tbe agreement but 



on the expiration of that term shall be 
liable to ejectment unless he has acquired 
a right of occupancy. But if the raiyat 
does nob agree to pay the rent so deter- 
mined, the Court shall pass a decree for 
ejectment and a decree for ejectment so 
paesed shall take effect from tbe end of 
the agricultural year in which it is passed. 
The suit for ejectment was not decided by 
the Munsif until tbe 4th February, 1920 
when be found tbat a fair and equitable 
rent for tbe holding was Rs 252*13-0. 
On the 12th February, 1920 a no-bice was 
served on tbe Defendants to accept and 
pay tbe rent found to be fair and equitable 
but they do not appear to have agreed to 
pay the rent at tbe rate found by the 
Munsif. Tbe Munsif's judgment has not 
been produced before us but it may be 
assumed tbat be passed a decree for 
ejectment in accordance with the provisions 
of section 46 (8) of the Act. No steps 
however, were taken to eject the tenants 
and they remained in possession without 
any agreement to pay the rent determined 
by tbe Court. I thitk the plaintiff was 
entitled to put them to their election but 
she failed to do so, and no agreement was* 
oonao to by tbe tenants to accept the new 
rent determined by the Court until a year 
later as will presently appear. 

The defendants appealed from the 
Muneif's decision to the Subordinate 
Judge. On the 19th September, 1920 the 
appeal was dismissed. The defendants 
then preferred a second appeal to the High 
Courb and applied for a stay of execution 
of tbe decree for ejectment. They were 
in this difficulty that if they refused to 
agree to pay tbe rent found equitable, they 
would be liable to ejectment before the 
decision of the High Court on appeal. If 
they agreed to pay tbe rent found 
equitable they considered, rightly or 
\\roDgly, tbat their appeal to the High 
Court could not proceed. In the result 
they agreed to pay the rent found fair 
and equitable by the Court stipulating that 
it should be subject to the result of their 
appeal then pending in the High Court. 
Their agieement is dated the 10th 
February, 1921, corresponding to the 
18th Magb 1328 F. Tbe appeal in 
'the High Court was decided on the 
3rd January, 1923, the decision of the 
lower Courts being affirmed and the 
appeal dismissed. Pending this litiga- 
tion, the object of which was to fix a fait 



44 Fatna MT, WAJIBUNNISSA BEGUM v. BABU LAL (Dawson Miller, C,J.) 1980 



and equitable rent which the defendants 
could only refuse to pay under pain of being 
ejected, the defendants deposited in Court 
under the provisions of section 61 of the 
Act the rent due at the old rate, namely, 
Bs. 102 per annum, a short time after the 
expiration of each 6f the three years 1325 
to 1327 and notices of the deposit were 
serve 1 upon the Plaintiff on each occasion 
shortly after the deposit was made. The 
notices of the deposits for 1325, 1326 and 
1327 were served upon the plaintiff on the 
15(>b Daoember, 1918, 15bh December, 
1919 and the 24th Daoember 1920, respec- 
tively. 

The fired question for determination is 
from what data is the enhanced rent pay- 
able. The Plaintiff contends that under 
section 46, sub-section (7) the enhanced 
ronb is payable from the 18bh July, 1917 
when the agreement mentioned in sub- 
, section (1) was served upon the tenants, 
fluh-secbion (7) reads as follows : " If the 
raiyat agrees to pay the rent so determined " 
(that is, the fair and equibabla rent deter- 
mined by the Court in a suit for ejectment 
mentioned in sub-section 6), " he shall be 
entitled to remain in occupation of his 
holding ab that ronb for a term of 5 years 
from the date of the agreement under the 
conditions mentioned in the last foregoing 
section, unless he has acquired a righb of 
occupancy. " Har contention is that the 
date of the agreement there mentioned has 
reference to tho agreement tendered to the 
tenant under sub-seobion (1). Ibis urged 
that it would ha unjust where the rent is 
below the fair and equitable rabe and tha 
landlord claims enhancement under the 
earlier clauses of the section to allow the 
tenant by refusing to pay an enhanced 
rent, to continue in possession at the old 
rate until a suit has been brought and a 
fair rend determined which, as in this 
case, might take a long time, and that 
once the fair rent has been determined by 
the Oourb ic should take effect; from the 
date when the enhancement !was first 
claimed and an agreement tendered under 
the earlier clauses of the section. The 
defendants, on tho obher hand, contend 
that the date of tha agreement in sub-sec- 
tion (7) must rafor to the earlier words of 
that sub-section which oonbemplaba an 
agreement) by the raiyat to pay the rent 
determined by the Court. They point out 
that the agreement mentioned in the earlier 
sub-sections (1) to (5) is nrarely a docu- 



ment tendered to the raiyat for execution 
whioh he may or may not execute at his 
option and that in fact, until executed, it 
is no agreement at all, and that if aub 
section <7) intended to refer to the date 
when that agreement was tendered, ib would 
have said so. Moreover the document? 
tendered would not bear any date until its 
actual execution. They further point out 
that under sub-eeobion (3) if the agreement 
referred to in sub-sections (1) and (2) had 
been accepted and executed by the tenant 
it would not take effect unbil the com- 
mencement of the agricultural year next 
following, and there is no reason for sup- 
posing that where a raiyat agrees bo accept 
the equitable rent found by the Courb after 
a suit for ejectment, that agreement should 
bake effect from an earlier data than would 
have been the case had be accepted the pro- 
posal put forward by the landlord before 
litigation took place. Moreover the agree- 
ment tendered under geotion 46, sub-sec- 
tion (1) was bo pay rent ab the rabe of 
Rs. 379 and ib would he unjust that havteg 
refused to pay that rent, but afterwards 
having accepted a smaller rate determined 
by the Gourb, ho should have to pay the 
enhanced rent from the date when the 
larger rate was unjustifiably demanded. 
Much may be said on purely equitable 
grounds as to what the law ought/ to be, 
bub we musb interpret the section accord- 
ing bo the natural meaning of the words, 
unless such interpretation would lead to 
a manifest absurdity whioh ib may be 
presumed the legislature did nob inbend. 

Ib may be observed that section 46 refers 
to two separata and distinct matters. 
The firsb five sub-seobions contemplate an 
amicable enhancement of the renb of a 
non-oooupanoy raiyab wibhoub litigation. 
Tha landlord proposes an enhanced rent 
and tenders bo the raiyat an agreement; to 
pay that enhanced rent whioh he may or 
may nob execute at his option. If he 
aocepbs the proposal then the enhanced 
rent bakes effecb from bhe beginning of 
the next agricultural year. If he does not 
aooepb it then the landlord may sue for 
ejectment. The sixth an subsequent 
sub- sections relate to the procedure to be 
adopted where* a suit for ejeobtiaent has 
been brought. They provide thafl before 
ordering ejectment the Oourb shall deter- 
mine what ia a fair and equitable rent. 
If the raiyat refuses to pay the renb so 
found then ho may be ejected, bat it saetni 



f 996 MT. WAJIBUNNISSA BEGUM v. BABU LAL (DaweoD Miller, O.J.) Patna 45* 



perfectly clear that be would nofc be liable 
for anything more than the original rent 
upto the date when he was ejected. If, 
on the other hand, he agrees to pay the 
rent go determined he shall be entitled to 
remain in occupation of his holding at that 
rent for a term of 5 years from the date 
of the agreement. It seems to me clear 
that the date of the agreement there men- 
tioned is the date when he agrees to pay 
" the rent found by the Court. There would 
appear to be no more reason why he 
should pay that enhanced rent from an 
earlier date, if he accepts it, than there 
would be why be should pay an enhanced 
rent if he refuses to accept it and renders 
himself liable to ejeotn ent, The agree- 
ment ID this case was dated the 10th 
February, 1921, and, in my opinion, the 
enhanced rent; became payable from that 
date. The result is that unless the suit is 
barred by limitation the rent payable by 
the tenants was at the rate of R?. 102 up 
to the lOfch February 1921 which corres- 
ponds to the 18th Magh 1328 F. and the 
rent payable after that date is at r.he rate of 
Bs. 252-13-0. The learned Subordinate 
Judge considered that the enhanced rent 
was not claimable until the 3rd January, 
1923 when the High Court finally dismiss- 
ed the appeal in the ejectment suit. But 
it seems clear that the enhanced rent is 
payable at the latest from the date when 
the raiyat agrees to pay the rent deter- 
mined by the Court. Sub-section (7) does 
not in terms say from what date the 
enhanced rent should be payable. It 
merely states that the raiyat shall be en- 
titled to remain in occupation of his hold- 
ing at the enhanced rent for a term of 
5 years from the date of the agreement. 
But, as his liability to pay the enhanced 
rent only ariges by reason of his agree- 
ment, it seems to me impossible to bold 
that he was under any liability to pay rent 
at the enhanced rate before that date. 
The facb that the defendants did not in 
fact agree to pay the enhanced rent until a 
much later date than tbab on which they 
might have been put to their election 
appears to h*vo been due to the failure of 
the plaintiff to insist upon her rights. She 
could have 'compelled the defendants to 
pay the new rent or submit to ejectment as 
soon as the Hunsii's decision was given 
unless the Court ordered a stay, which 
would only be granted on terms protecting 
the plaintiff's rights. 



It remains to consider whether the 
claim is barred by the special limitation 
prescribed in Schedule III of the Aot. If 
the limitation there prescribed applies to the 
facts ot the present case then it is clear 
that the claim for rent for the years 1325 
and 1326 F, is time-barred, for the notices 
of deposit for those years were served on 
the 15th December, 1918 and the 15th 
December, 1919 respectively. The notice of 
deposit of the rent for the year 1327 was 
served on the 21th December, 1920 and 
the learned Subordinate Judge considered 
that the claim for rent for that year was 
aleo barred. It appears to have escaped 
bis notice, however, that the present suit 
was instituted within six months of the 
24th December, 1920, namely, on the 
4th May 1921, any it was conceded in 
argument before us that the rent for thaft 
year is not barred. 

The appellant, however, contends that 
the claim for rent for the two previous 
years is not time-barred on the ground 
that Iht requirements of section 61 of the 
Bengal Tenancy Aot were not complied 
with. The section provides that in cer- 
tain oaseR, which are applicable in the 
present instance, the tenant may present 
to the Court having jurisdiction to enter- 
tain a suit for the rent of his holding an 
application in writing for permission to 
deposit in Court the full amount of the 
money then due. The application must 
state the grounds upon which it is made 
and shall contain certain particulars as to 
the name of the person to whose credit the 
deposit is to be entered and it shall be 
signed and verified in the manner pres- 
cribed by section 52 of the Code of Civil 
Procedure. Under section 62, if the Court 
accepts the deposit, it shall give a receipt 
for it under the seal of the Court and the 
receipt so given shall operate as an 
acquittance for the amount of the rent) 
payable by the tenant and deposited as 
aforesaid in the same manner and to the 
same extent as if that amount of rent had 
been received by the person entitled to it. 
It is pointed out on behalf of the appellant) 
that as the rent was not deposited until 
the end of the year, interest became pay* 
.able from the dates of the different kists 
in each year and the amount of interest 
was not dBposited. It has been found 
that the rent was payable not at the end 
of each agricultural year but kist by kist 
and this is no longer disputed. It) follows, 



16 Patna MT, WAJIBUNNISSA BEQUM . BABU LAL (Dawson Miller, CJ.) 1986 



therefore, that ad tbe end of the year some 
interest would be due upon the unpaid 
instalments and as the interest was not 
deposited it is contended that the defen- 
dants oannot be taken to have made a valid 
deposit under section 61 of the full amount 
of tbe money then due. The limitation 
only applies to oases where the deposit 
was made under section 61 and if no 
deposit was made within the meaning of 
that section the limitation period oannot 
apply. The question for determination is 
whether the deposit made in the circum- 
stances stated was a sufficient compliance 
with the section. The learned Subordi- 
nate Judge considered that even if the 
amount deposited fell short of the sum 
. actually due to the landlord at the date of 
the deposit it was a sufficient compliance 
with the section. In support of hia find- 
ing he relied upon the case of Sasibhusan 
Dey v. (Imakanta Dey (1). In that case 
the previous decisions of the same Court 
were reviewed and the meaning and effect 
of the section was considered at length. 
The Court consisting of Mookerjee and 
Beaohcroft, J J., held that, where there has 
been a bond fide deposit in respect of the 
whole amount due at the date of the de- 
posit, and not merely in respect of a por- 
tion thereof, the deposit is validly made 
under the section, even though it should 
turn out that the whole amount due had not 
been deposited. In my opinion that case 
was rightly decided. The section appears 
to me to provide for the case of a bonafide 
deposit of what tho tenant considers to 
be the full amount of the rent due at the 
time of deposit. The deposit, however, 
must be in respect of the whole rent due 
and nob in respect of a portion only. It 
may well happen that there id some differ- 
ence between the landlord and the tenant 
as to tbe amount of rant payable. In such 
a case the landlord might refuse to accent 
a sum which he considers falls short of 
the rent payable. One of the oases to 
which the section applies is where the rent 
has been tendered to the landlord and he 
has refused to accept it or grant a receipt. 
That might well happen where there was 
a bona fide dispute between the parties as 
to the actual amount payable. In the pre- 
sent case the tenants were contending 
that the rend was due at the end of the 



U) 



U9U) 19 O.W.N. 
0,L J, 163, 



1113*25 I.G. 17 1-2 



agricultural year and not kist by kist. If 
they were right in that contention no in- 
terest would be payable upon the earlier 
kists. The bona fides of the tenants in this 
case has not been impugned although the 
Court has decided that the rent was pay- 
able quarterly and not annually. It seems 
to me that the intention of the legislature 
was thbkt where a bona fide deposit has 
been made in reap sob of the whole rent due, 
then the matter must be decided by suit 
at the instance of the landlord within six 
months of the receipt of the notice. 
Under section 62 a receipt givea for the sum 
deposited acts as an acquittance to the 
extent of the amount deposited and the 
landlord can take the deposit out of Court 
and sue for the balance if he contends 
that; the total amount due has not been de- 
posited, and I think that the intention 
was that; in suoh a case tbe dispute 
between the parties should be promptly de- 
cided, otherwise the landlord cannot ques- 
tion the sufficiency of the amount paid 
into Court. If tha Appellant's contention 
be accepted it would follow that section 62 
could not operate if the amount paid in 
were less by a few annas than the amount 
actually due and no valid acquittance 
could be given to the tenant. Again if the 
Appellant's contention be accepted it is 
difficult to see in what case the period of 
limitation prescribed would be effective, 
for if the whole amount actually due must 
be paid in, so as to create a valid deposit 
under section 61, it follows that any suit by 
the landlord, whether brought within six 
months or at a later period to recover the 
rent, must prove iofructuous and there is 
no necessity for prescribing a period of 
limitation. If, on the other hand, the de- 
posit, of a smaller sum than that actually 
due is not a valid deposit within the mean- 
ing of the section, again the limitation 
prescribed is of no effect. In mv opinion 
the oasa of Sasibhusan Dey v. (Jmakanta 
Dey (1) was rightly decided and applies to 
tbe facts of this case. I think the claim 
for rent for tbe years 1325 and 1326 is 
barred by limitation and for the year 1327 
the Plaintiff is entitled to recover kist by 
kist at the old rate of Rs, 102 with interest 
at 12 per cent, credit being given for the 
amount deposited. With regard to the 
rent for t-he two kists of 1328 this is also 
recoverable at the old rate up to the lObh 
February, 1921 and after that date at the 
rate of Bs. 252-13-0 together with interest 



RAMB8WAR NARAYAN SINGH 0. MAHABIR PBA8AD 



Patna 47 



at 12| per cent. The Defendants are 
willing that the amount paid into Court 
(or the years 1325 and 1326, and which we 
are told is still in deposit, should be paid 
oat to the Plaintiff in satisfaction of the 
rent for those years notwithstanding the 
bar. There will therefore he an order 
that the sums deposited for the years 1325 
and 1326 be paid out to the Plaintiff, She 
will also be entitled to take out of Court 
the deposit made for 1327 in part satis- 
faction of her claim for rent for that year, 
The decree of the lower Appellate Court 
will be varied in accordance with the deci- 
sion above arrived at. The Appellant has 
failed upon each of the main points argued 
before us but has succeeded in so far as 
the rent for 1327 is concerned and has suc- 
ceeded in part as to the date from which 
the enhanced rent shall be payable. She 
has gained little advantage in so far as 
the rent for 1327 is concerned as this has 
been found to be payable at the old rate 
and the sum deposited could have been 
taken out of Court by her at any time. In 
the circumstances I think that the parties 
should each bear their own costs of this 
appeal. 

Macpherson, J. : I agree. 

Decree varied. 



AIR 1926 Patna 47. 

KULWANT SAHAY, j. 

(Kumar) Rimeswar Narayan Singh 
Defendant- Appellant 
v. 

Mahabir Prasad and others Plaintiffs- 
Bespondants. 

Appeal No. 643 of 1922, decided on29bh 
April, 1925, from the Appellate Decree of 
the Sub. Juage, Ranch! , dated 12th 
April, 1922. 

Chota Nagpur Tenancy Act (VI of 1920), 8, ML 
Suit to set aside an execution sale on the ground 
of fraud is gcverned not by 8. 231 but by Limita- 
tion Act, Art. 95, 

S, 914 b<%r%a suit to set aside ft sale under Chap- 
ter 16 of the Act except on the ground of fraud oc 
want of jurisdiction. 3. 368 contains a provision 
similar to (hat in 8. 914. 'These sections do not* 
create right to institute a suit to set aside a sale for 
a holding mtde under the Aofc, They ar the insti- 
tution oi suoh a autt except on the ground of fraud 
or want of jurisdiction. The right to institute a 
ait to set aside a sale has not been created but 
lias been taken away under the provisions of these 



sections. The right exists in a person to bring a 
suit to set aside a sale under the general law and 
it was taken aw*y by those sections except the 
right to bring a suit on the ground of the fraud or 
want of jurisdiction. Therefore a suit to set aside 
an exeouiion sale on the ground of fraud is not a 
suit instituted under the provisions of tho Obota 
N*gpur Temnoy 4ot as contemplated by 8. 231 
of the Act ; and consequently tbe period cf limita- 
tion is not the one provided by that section but 
the one provided by Art. 95 of the Limitation Act 
and the period of limitation is three years from 
the time when tbe fraud beoame-knowa to the 
plaintiffs. [P 48, Col l.J 

B. G. De-tor Appellant. 
N. Boy and Satdco Sahai for Respond- 
ents. 

Judgment : This is an appeal by the 
defendant against the decision of the Subor- 
dinate Judge of Eanohi reversing the 
decision of the Munsif of EUziribagh and 
decreeing the plaintiffs' suit. The suit wag 
for setting aside a sale of a raiyati holding 
held under the provisions of the Chota 
Nagpur Tenancy Act. The sale wad sought) 
to be set aside on the ground of fraud. Tbe 
defendant who was the landlord and the 
purchaser in the execution sale denied 
that there was any fraud and contended 
that the suit was barred by limitation. 
The learned Munsif who tried the suit held 
that there was fraud on the part? 
of the decree-holder and that the sale was 
vitiated on the ground of suoh fraud ; he, 
however, dismissed the suit on the ground 
of limitation. On appeal by the plaintiffs, 
the learned Subordinate Judge has held 
that the suit was not barred by limitation 
and has accordingly decreed the suit and 
set aside the sale. Against this decision the 
defendant has come up in Second Appeal. 

Tho principal question for decision in 
this appeal is as to whether tho suit was 
barred by limitation. Tho sale in execution 
of the decree obtained bv tho appellant! 
took place on the 3rd of December, 1917. 
The plaintiffs' case is that the entire 
amount due under the decree had been paid 
off and bhe appellant acted fraudulently in 
getting the sale confirmed, and that ha 
came to know of the fraud for the first 
time on the llth November, 19 L9, when 
possession was delivered to the anpellant. 
The suit was instituted on the 10th July, 
1920. The Munsif held that tho period of 
limitation was one year and that the 
plaintiffs had knowledge o? the sale beyond 
one year from the date of the suit and tbaft 
fche suit was accordingly barred by limita- 
tion. He' did nob in bis judgment state 



48 Fatna 



BAME8WAR HABAYAN SINGH t>, MAHABIB PBA8AD 



188* 



under what provision of the law he 
held the period of limitation to he 
one year. The learned Subordinate Judge 
on appeal was of ouinion that the period 
of limitation applicable to the suit was the 
one provided for in Article 95 of the 1st 
Fohedule to the Indian Limitation Ac6. It 
has been contended, however, on behalf of 
the appellant that t.he present suit was 
governed by section 231 of the Ghota 
Nagpur Tenancy Act and that the 
period of limitation was one year from the 
date of the accrual of the cause of action 
and that in on the finding of the Munsif the 
cause of action accrued to the plaintiffs at 
least on 8th April, 1918, if not earlier, and 
that the suit being instituted beyond one 
year from that date was barred by limita- 
tion, Now, in order tc make the provisions 
of section 231 applicable to the present suit 
it must first he established that the suit 
was one instituted under the Cbota Nagpur 
Tenancy Aot, Tho learned Subordinate 
Judge is of opinion that section 231 has 
no application to the present case inasmuch 
as the suit was not one under the Act. I 
am of opinion that the learned Subordinate 
Judge was right and that the present suit 
is nob one under the Cbota Nagpur Tenan- 
cy Aot. Reliance has been placed by the 
learned Vakil for the appellant upon the 
provisions of sections 214 and 258 of the 
Ohota Nagpur Tenancy Act and it has been 
contended that the present suit is one 
under the previsions of those sections. I 
am of opinion that this contention is un- 
sound. Section 214 bars a suit to set 
aside a eaie under Chapter XVI of the 
Aot except on the ground of fraud or 
want of jurisdiction. Section 258 con- 
tains a provision similar to that in sec- 
tion 214. These sections do not create a 
light to institute a suit to sot ustde a sale 
of a holding made under the Act. They 
bar the institution of suoh a suit 
except on the ground of fraud or want 
of jurisdiction. Tho right to institute 
a suit: to ee r > astrie a sale has not been 
created buh has been taken away under 
the pro-VHioiJS of these sections. The right 
exists in a per>on to bring & suit) to set 
aside a pale order the general law and 
was not coui tried under the provisions of 
the Chota Nagpur Tenancy Aot and suoh 
right was tttktm ;iway by these sections 
except the right to bring a auio on the 
ground of fraud or want of jurisdiction. 
Ibe present suit was, therefore, not a suit 



instituted under the provisions ot the 
Chota Nagpur Tenancy Aob as contemplat- 
ed by section 231 of the Aot ; and conse- 
quently the period of limitation is not the 
one provided by that section but the one 
provided bv the Indian Limitation Aot. I 
am, therefore, of opinion that the suit 
must be governed either by the provisions 
of Article 12 or by those of Article 95 of 
the 1st schedule to the Indian Limitation 
Aot. In my opinion the suit being for a 
relief on the ground of fraud the Article 
applicable is 95 and not Article 12 of the 
Limitation Ace, and the period of limita- 
tion ia therefore three years from the 
time when the fraud became known to the 
plaintiffs. In the present case the suit was 
brought within three years even from the 
date of the sale and was evidently within 
time. 

It has next baen argued that there was 
no fraud as alleged in the plaint. I am of 
opinion that the appellant cannot be 
allowed to raise this question in Second 
Appeal. It was found by the Munsif 
that there was fraud on the part of 
the defendant and that finding was 
not challenged by the defendant; before 
the Subordinate Judge as is expressly 
stated in the decision of the Subordinate 
Judge. It has been contended that the 
fraud alleged was not in bringing about 
the sale but in getting the sale confirmed 
after receipt of the entire amount of the 
deoree ; and it) is pointed out that under 
the provision? of the Ghota Nagpur Tenancy 
Act a sale is not required to be confirmed. 
No doubt, there ie no provision in the Act 
for confirmation of sale nd in Lai Nil- 
?nani Nath Sahi Deo v. Ba% Bahadur 
Baldeo Das B;rla (1) it was held by 
this Court that there was no provision in 
the Aot for confirmation of a sale. Refer- 
ence was made in that oase to the 
expression 11 confirmation of sale" ooour- 
ing in clause (d) of section 209 of 
the Aot ; but it is noticeable that the word 
" date " was substituted in this clause for 
the word " confirmation by the Bihar 
and Oriss* Act (V of J920) and tbe word 
" confirmation " now no looge^ oooura in 
this section. The question of fraud, how- 
ever, was not rai86<i by the appellant in 
the lower Appellate Court, aud I am of 
opinion th%t tha appellant oacnot be allowed 



(J) (1930) I P.L.T. 146-6 Pafc. L, J. 101-55.1,0. 
27-l920P,H,O.C, 73, 



GANBSH LALL V. B1SBSAB PANDBY 



Pstaa 49> 



to raise the question here in this Second 
Appeal. The only point argued before the 
Subordinate Judge was the question of 
limitation and this question appears to 
bave been correctly decided. 

This appeal is dismissed with costs. 

Appeal dismissed. 



AIR. 1928 Patna 49. 

KULWANT SAHAY, j. 

Oanesh Lo.ll Defend ant- Appellant 

v. 
Bisesar Pandey Plaintiff -Respondent. 

Appeal No. 604 of 1922, decided on the 
6th April, 1925, bgainst the Appellate 
Decree of the Sub- Judge, Patna, dated 5th 
June, 1922. 

(a) Civ, Pro. Code, 8, 100 Construction of a 
till* deed is a question of Law. 

The construction of a document of title is a 
point of law. [P. 49, Ool. J.] 

(b) C\v. Pro. Code, 8. 100 Misreading of docu- 
mentary evidence Finding is not binding. 

Where A finding of faofc is baaed on * piece of a 
documentary evidence which has been completely 
misread bv the Court, the finding i* not binding in 
eeoond appeal. [P. 51, Col. 1.] 

P. C. Manuk and Anand Prasad (or 
Appellant. 

N, N. Sen for Respondent. 

Judgment : This is an appeal on 
behalf of the defendant and arises out of a 
suit brought by the plaintiffs-respondents 
for a declaration that the defendant has no 
right to open doors on the south of his 
house marked F in the sketch map filed 
with the plaint on a lane marked E in the 
map, on an allegation that the said lane 
was the private property of the plaintiffs 
and of the owners of the houses marked 
B and C in (he sketch map. 

The defendant denied the title of the 
plaintiffs to the lane and asserted that it 
was a public lane to which the plaintiffs 
had no exclusive title and that the defen- 
dant bad as much right to tbe lane as the 
plaintiffs bad, and that be bad tbe right to 
open the doors at the points marked G 
and H in%the sketch map towards south 
Of his opening on the lane, 

The leaVned Muusif bund that the plaint 
tiffs had got no right to tbe soil of tbe lane 
and that they had only a right pf way over 
it. Efe was of opinion that the lane was 
not a public lane aa alleged by the defen- 
1926 P/7 & 8 



dant but that it* was a blind lane terminat- 
ing at the southern extremity of the house 
marked A in the map He held that the* 
lane was not a private lane of the plaintiffs 
only but that) the defendant had also the 
right to use it. He accordingly refused to 
give a decree to the plaintiffs restraining 
the defendants from opening his doors at 
the points G and H and dismissed the 
suit. 

On appeal the learned Subordinate Judge 
has decreed the suit and has made a 
declaration that the defendant has no right 
to open the doors at the points G and H 
or to open any other door into the lane- 
marked E in the map which he declared to 
be the private lane of the owners of the 
houses A, B and in the sketch map filed 
with the plaint. 

Againsb this decree the defendant has 
come up in second appeal to this Court. 
It is contended on his behalf that the 
learned Subordinate Judge has made a 
mistake of record in considering the docu- 
mentary evidence in tbe case and has also 
put a wrong construction upon Ex. 5 
which is the title-deed of tbe plaintiffs. 

On referring to the sketch map filed with 
the plaint, it appears that the plaintiffs' 
house marked A lies to tbe east of tbe 
defendant's house marked F. South of the 
plaintiffs' house is the house of Mahadeo 
Pande marked B and to the south of 
Mahadeo Pande'a house is the house of 
Basant Misser marked 0. Between the 
house of Mahadeo Pande and the defen- 
dant's bouse there is a lane wbiob is said 
to be a continuation of the disputed lane 
marked E lying to the south of the defen- 
dant's bouse marked F. 

Tbe learned Subordinate Judge agrees 
with the Munsif that the oral evidence 
with regard to the ownership of the lane 
is not satisfactory ; but he was of opinion 
that the documentary evidence adduced by 
the plaintiffs was distinctly in favour of 
tbe plaintiffs and established their title to> 
the lane. The first document that the 
learned Subordinate Judge considers is 
Ex, 5 a kabala dated tbe 30oh August, ~ 
1872. This is a title deed of tbe plaintiffs 
and the construction of this document is a 
point of law which can be taken in 
second appeal. By this kabala (Ex. 5) 
Mabadeo Pande, tbe owner of the house 
marked B, sold a portion of his house to 
the ancestor of the plaintiffs. That portion 
has now been amalgamated with the* 



50 Patna 



GANESH LALL V. BISESAB PANDBY 



1986 



plaintiffs' old house, and the houee marked 
A in the sketch is the old house of the 
plaintiffs amalgamated with a portion 
of the house B purchased under Ex. 
5. The learned Subordinate Judge 
refers to the eastern boundary of the 
portion sold by Ex. 5 which was 
stated to be the house of one Doman 
and from this he inferred that there was 
oo lane to the east of the plaintiffs' house 
as alleged by the defendant. He than refers 
to a description in the kabala, Exhibit 5, 
to the effect that the main entrance of the 
portion of the house sold lay to the south 
and he says that this is the entrance as 
shown in the sketch map as being the 
entrance of the house A. This, however, 
does not show the title of the plaintiffs to 
the lane in dispute and there is no question 
of mis-construction of this document and 
the argument of the learned Counsel for the 
appellant that the Subordinate Judge has 
misconstrued the title-deed (Exhibit 5) 
must fail. 

The next document referred to by 
the learned Subordinate Judge is a 
khasra marked Ex. 15 and a map 
marked Ex, 14. This khasra and 
the map were prepared in the course 
of a partition suit and it is nob a 
khasra made at a public survey as stated 
by the learned Subordinate Judge. Item 
No. 211 in this khasra is the house marked 
in the sketch map. This khasra shows 
that the house marked G then belonged to 
one Musammat Pano Kuer, widow of 
Dwarka Pande, There are two entries in 
Khasra No. 211. The first entry is that of 
the house now marked as the house of 
Musammat Pano Kuer of which the length, 
breadth and area are given in the columns 
provided therefor. The next entry runs 
thus: "Goshagali for egress and ingress 
westward up to the road " ; and the length, 
breadth and area of this Goshagali are also 
given separately from those of the house. 
The learned Subordinate Judge on a refer- 
ence to the map finds that this Goshagali 
is the lane marked E in the sketch map 
which is the subject of dispute in the pre- 
sent case. The learned Subordinate Judge 
says that these two documents (Exs. 14 
and 15) show that the title to the lane 
was with the widow of Dwarka Pande who 
was an agnate of the plaintiffs. The 
learned Subordinate Judge says that this 
plot No. 211 is entered in the khasra under 
t|be column headed "Jagir Bishanprit, etc." 



In this he is clearly wrong, It is not shown 
in the khasra under the column headed 
" Jagir Bishanprit, etc." In fact this 
particular column is left blank against the 
Khasra No. 211. It is contended by 
Mr. Manuk that this is a mistake of record 
and that the finding of the Subordinate 
Judge to the effect that the lane in dispute 
is proved to be the Jagir Bishanprit of 
Dwarka Pande is based on the erroneous 
impression that it is entered in the column 
of "Jagir Bisbanprit, etc,," in the khasra 
and that when there is no such entry in 
the khasra, the whole decision of the 
Subordinate Judge is vitiated as the finding 
is based on a fact which is non-existent. 
Further on in the judgment the learned 
Subordinate Judge observed that although 
the Goshagali was measured as a parb of 
plot No. 211 it will appear that it was 
the nikas of Mabadeo Pande and others 
and Musammat Pano Kuer could not 
obviously sell it away. Mr. Manuk con- 
tends that there is an inconsistency 
in the finding of the learned Subordinate 
Judga His first finding being that Pano 
Kuer had a title to the lane, the subsequent 
finding that she could not sell it away is 
inconsistent with that finding, The plain- 
tiffs' oat?e was that the lane in dispute was 
the brahmottar land belonging to their 
ancestors and to themselves and the learned 
Subordinate Judge has found that this 
allegation is correct under the mis-concep- 
tion that it is described in the khasra under 
the column of " Jagir Bishanprit, etc. 11 
There being no such entry in the khasra 
the finding of the learned Subordinate 
Judge cannot be sustained inasmuch as it 
is based on a mis-reading of the khasra. 
This khasra (Ex. 15) was a very important 
piece of evidence in the case and the learned 
Subordinate Judge relies upon it very 
strongly ; and one does not know what 
would have been his decision if he had 
read the khasra correctly. 

The documents marked Exs. 13 *nd 7 
which are next considered by the learned 
Subordinate Judge do not prove the plain- 
tiffs' title to the lane ; they only show that 
the lane was the mkas or passage of egress 
and ingress of the houses of Mah?deo Pande 
and others. The learned Subordinate Judge 
himself observes that the dooumen-ts Exs. 7, 
17, 8, 11 and 12 referred to by him do not 
prove the ownership of the lane to belong 
to the plaintiffs. As regards the sab-deed 
(Ex. 19) the learned Subordinate Judge 



IS26 



HARBANS NARAIN SINGH V. MOHAMMAD SA7BBD 



Patna 5 



refers to the eastern boundary thereof 
which is shown as Galimai nala Bisesar 
Pande. This is tbe deed by whioh the 
defendant purchased the house marked F. 
Bisesar is one of the plaintiffs in this case 
and from the description of the eastern 
boundary of the houae marked F the learn- 
ed Subordinate Judge comes to tbe conclu- 
sion that the lane in dispute beiongs to 
Bisesar Pande. It is, however, pointed out 
by Mr, Manuk that the lane there referred 
to is the lane to the east of the house 
marked F which is not in dispute in the 
present case. The dispute relates to the 
lane lying to the south of the house marked 
F and the description of the southern 
boundary in this deed Ex. 19 is merely 
gali amad raft, i.e., a lane whioh is a 
passage for ingress and egress. This does 
not show that the lane in dispute belongs 
to Bisesar Pande and the different descrip- 
tions of the eastern and the southern 
boundaries in the same document are 
remarkable. 

There is thus a serious error in the judg- 
ment of the Subordinate Judge as regards 
Ex. 15 and, as I have said, if) is impossible 
to say what the decision of the Subordinate 
Judge would have been if be had correctly 
read Ex. 15. Farther he has considered 
only one of the boundaries given in Ex. 19 
and has not considered the southern boun- 
dary thereof whioh was very important. I 
am, therefore, of opinion that the decision 
of the learned Subordinate Judge cannot 
be maintained. The decree appealed 
against muati, therefora, be saa aside and 
the appeal remanded to the Subordinate 
Judge for disposal after reconsidering the 
evidence in the oasa. Goats will abide the 
result. 

Decree set aside. 
Case remanded. 



A.I.E. 1986 Patna 61. 
MAOPHBRSON, j. 

Harbans Narain Singh and others 
Petitioners 

v. 

Mohammad Sayeed and others Opposite 
Party. 

Criminal Revision No. 108 of 1925, 
decided on 6th May, 1925, from a* decision 
af the District Migistrate, Mongbyr, dated 
Uth February. 1925, 



Grim. Pro. Cod*, S. 245 Order passed after 
looking into evidence and heanng arguments 
Order declaring right of one party to b in posses- 
sion and forbidding others from interfering with 
the possession is one under 8. 115. 

Where a M*gistr*te, on A police report being 
received that there WAS A dispute regarding A pieoe 
of laad and breach of peaoe WAH apprehended, 
called for documentary evidence from the parties, 
beard arguments and passed an order declaring 
one party in possession and directing that if other 
were to obstruct him, proceedings under 8. 1 
would be started And referred tbe parties to oiv 
Court : 

Held, that the Magistrate acted judicially an 
pissed without jurisdiction au order whioh b 
oould only paes under 8. 146 and therefore i 
should be vacated. [P. 52, Ool, 2 ] 

K. B. Dutt and P. C. Bai for Peti- 
tioners. 
Ntyamat Ullahiot Opposite Party. 

Judgment : This is an application 
against an order dated the llth January, 
1925, of the Sub- Divisional Magistrate o 
Monghyr. 

Oa 19t,h November, 1923, an order under 
section 144 of the Oriminal Procedure Oode, 
was made absolute by a Dapufcy Magistrate 
of Mongbyr against the petitioner, Harbana 
Narain Singb and also the opposite party 
Eita Singh with the result that the opposite 
party Muhammad Ishaq was directed to ba 
retained in possession of an area of 30 big has 
whioh was the land in dispute between the 
parties or a part of it. Tbe Magistrate 
added that if the parties to the proceeding 
created trouble after the expiry of two 
months, action under section 107 or sec- 
tion 145 of the Criminal Procedure Oode, 
would be taken Harbans Narain moved the 
High Court and on 1st February, 1924 this 
Court set aside the order on the view that 
it was not one whioh oould be properly 
made under section 144. The learned 
Judge further directed as follows ; 

"if there is any apprehension of a breach 
of the peace it will be open to the Magis- 
trate to take proper proceedings according 
to law." 

On tbe 2nd December, 1924, the Police 
submitted a report recommending action 
under section 144 followed by proceedings 
under section 145 in respect of a plot of 40 
bighas (out of a large area of about 163 
bighas) whioh apparently includes the area 
of 30 bighas already mentioned, aod show- 
ing the petitioners as first party, Muham- 
mad Saiyid and others as second party. 
Fazal Karim and Ishaq, already mentioned, 
as third party and Rita Singh aa fourth 



62 Patna 



HABBAN8 NABA1H SINGH , MOHAMMAD SAYBBD 



party. On that report the Sub-Divisional 
Magistrate passed the following order on 
9th December. 

"All parties should appear before me 
with their documentary evidence on 20th 
December. Meantime they should not 
commit a breach of the peace by going 
to the lands in dispute." 
On 12th January he "heard the lawyers 
for the first three parties " and two days 
later passed the order of which revision 
ie sought. It runs as follows : 

'The first party claim the land as 
bakast, but there is DO documentary evi- 
dence in support of their claim that this 
particular land is bakast. The second 
parly claimed settlement of 40 bighas of 
the disputed land from the previous mahks 
and produced rent )eceipts in support of 
their claim. He was also sued by the late 
maliks of 12 annas, etc., share of arrears 
of rent. The third p&rty claims 30 bighas 
out of the disputed land as his raiyati 
but the rout receipts filed do not seem to 
be reliable. The fourth party claim to 
be sub-tenants of the second. 

1 consider that the second party are in 
possession 40 bighas of the disputed land. 
The others are forbidden not (sic) to inter- 
fere with their possession. If they do, 
they will be proceeded against under 
section 107, Criminal Procedure Code. 
They had better go to the Civil Court if 
they have any rights/' 

Mr, K. B. Dutt on behalf of the petition- 
ers contends that the order is a judicial one 
and that this Court has jurisdiction to 
set it aside. On behalf of the opposite 
party it is suggested that the order is a 
judicial one under section 144 which should 
not be set aside as it has spent its force. 

In his explanation the Sub-Divisional 
Magistrate claims that bis order was an 
executive one, and states that he thought 
it necessary before taking action under 
the Criminal Procedure Code, to hear the 
parties but that after hearing them he did 
not consider that any action under the 
Code was necessary. Some support for 
the view that the order is an executive one 
might be derived from the fact that in the 
copy of the order tiled with the petition the 
designation " S. D. 0." is appended to the 
initials of the Magistrate but those letters 
do not appear in the original. 

If the order was passed by him as a 
Court, the Magistrate manifestly could nob 
Avoid responsibility now by raying 



be passed the order in an executive capacity* 
It is, however, difficult to say what the 
order really is. It does not indeed pur- 
port to be passed under section 144 or 
section 145 and the Sub- Divisional Magis- 
trate apparently desired to avoid issuing. 
orders under section 144 because this Court 
had set aside a similar order, and also to 
avoid taking proceedings under section 145 
to which the order of this Court pointed, 
which besides being troublesome too 
often lead to nothing, as they have to be 
set aside on technical grounds. But actually 
the order passed differs little from the pre- 
vious order which was set aside by this 
Court (except in the fact that it does nob 
purport to be made under section 144) and 
that order was set aside on the ground 
that though passed under section 144 it 
was actually one contemplated by sec- 
tion 145 which was passed without observ- 
ing the formalities indispensaible under 
the provision. It is difficult to see that 
the order now challenged is anything else 
than a thinly disguised order under 
section 145, In substance, though not in 
form, the Sub-Divisional Magistrate took, 
action under the Criminal Procedure Code 
and once again passed an order under 
section 145. He decided a question of r 
disputed possession and forbade inter- 
ference with the possession of the party in 
whose favour he decided, directing the 
opposite parties to the Civil Court. He 
oould not do this executively. The mere 
fact that he proposed to enforce his order 
by action under section 107 of the Criminal 
Procedure Code, instead of by a prosecu- 
tion under section 188 of the Penal Code 
hardly affects the matter. A similar refer- 
ence to section 107 had been made in the 
illegal order under section 144 which this 
Court bad set aside, I am constrained to 
the conclusion that the Sub-Divisional 
Magistrate acted judicially and passed 
without jurisdiction an order which he 
could only pass under section 145, 

The Rule is made absolute and the order 
of the 14th January is set aside. It is of 
course open to the Magistrate to take any 
proceedings to keep the peaoe v which are 
warranted by law, but he must face the 
position squarely and realise tb^ta an order 
contemplated by section 145 cannot be 
passed by a short out such as was taken in 
the present instance. 

Rule made absolute* 



1986 



GOKUL TATWA V. RMPBROfc 



Fatna 5$ 



A.I.R. 1928 Patna 63. 

KULWANT SAHAY, j. 

Gokul Tatwa and others Accused-Ap- 
plicants 

v. 
Emperor Opposite Parby, 

Criminal Revision No. 275 of 1924, 
decided on 29fch June, 1924, against an 
order of the Sessions Judge, Purnea. 

Cnm. Pro. Code t S. 59' In his view ' means 
1 in his presence*. 

The worda " in hia view*' in 8, 59 mean " in 
presence of M or " within sight of " and not " in h?g 
opinion'*. [P, 53, Ool. 2,] 

S. N. Sahayior Applicants. 

The Govt. Advocate for Opposite party. 

Judgment : The petitioners have been 
convicted for an offence under section 225 
of the Indian Penal Code and sentenced to 
pay a fine of Ra. 25 each. The prosecution 
fltory is that on the night of the 27th of 
October, 1923, the complainant Sakhiohand 
Halwai was roused from his sleep by the 
falling of a box in one of the rooms of his 
-house Sakhiohand is said to have got up 
and seen three men running away across 
the courtyard towards the north. Sakhi- 
ohand is then said to have gone to the room 
and having perceived the presence of a man 
inside the room closed the door with a 
tatti and shouted " thief, thief " upon which 
one Bmhai who is one of the accused in 
the present case and two chauktdars Babu 
Jan and Kishuni came followed hy the 
other accused. Binhai and Sakhiohand 
are alleged to have gone inside the room 
and after lighting a lamp to have found 
one Gena Tatwa, a servant of the petitioner 
Gokul Tatwa, hiding himself beside a kothi 
or granary. Sakhioband is said to have 
arrested Gena and the petitioners are alleged 
to have rescued Gena from the custody 
of Sakhiohand The petitioners pleaded 
not guilty and stated that the charge 
brought against them was false. The learn- 
ed Deputy Magistrate who tried the case 
found that, the prosecution story was true 
in material particulars, and he accordingly 
convicted the petitioners and sentenced 
them as stated above v 

Two points have been taken by the learrf- 
ed Counsel for the petitioners. The first 
point jiaken by him ia that upon* the findings 
the custody of Gena Tatwa was not lawful 
custody, Secondly, it has been contended 
4hafc Gena Tatwa was tried on the charge 



of tbeft and acquitted and it was found that 
he had committed no offence, and tinder 
these circumstances a charge of rescuing 
him from lawful custody cannot be 
sustained. 

As regards the first point, s. 59 of the 
Criminal Procedure Code authorises any 
private person to arrest any person who in 
his view commits a non-bailable and cogni- 
zable offence. It has been argued that in 
the present case according to the prosecu- 
tion story Gena Tatwa did not commit any 
non-bailable and cognisable offence in the 
view of Sakhiohaod JTalwal and that, 
therefore, the arrest of Gana Tafcwa by 
Sakhiohand Halwdi was not lawful. Oa 
the other band ib has been argued by the 
learned Government Advocate that the 
facts do show that Gena Tatwa did 
commit? a non-bailable and cognizable 
offence, namely, the offence under sec- 
tion 379, Indian Penal Code, in the view 
of Sakhiohand Halwai, and, therefore, the 
arrest was lawful. The determination of 
this question depeuds on the meaning of 
the words "in hia view" in s. 59 of thr 
Code. In my mind these words mean " in 
presence of " or "within sight of " and the 
section provides that if an offence is com- 
mitted in the presence of or within tbesight 
of any private person then such person 
is entitled to arrest the person committing 
such offence. Ib is only when a non-bailable 
and cognizable offence is committed in the 
sight and in the presence of a private person 
that such person is en tidied to arrest the 
offender. The learned Government Advo- 
cate, however, argues that the words in 
his view mean " in his opinion," and that 
although the offence might not be com- 
mitted within the sight or in the presence 
of a private person but if such person is of 
opinion that such offence has been com- 
mitted he is entitled to arrest. I am 
unable to agree with this interpretation. 
To my mind the Legislature did not intend 
to give a private person authority to arrest 
an offender if, upon information received or 
from other circumstances appearing before 
him he is of opinion that an offence baa 
been committed. If I am correct in my 
interpretation of section 59 of the Code, 
then the arrest to Gena Tatwa by Sakhi- 
ohand could not be a lawful arrest, because 
no offence of theft was committed by Gena 
in the presence and within sight of Sakhi- 
ohand Halwai, all that was found was that 
Gena Tatwa was found hiding himsail 



$4 Patna KESHUB FBASAD SINGH v. HABIHAB PBASAD BINGE 



behind a kothi in the bouse, and that would 
not entitle Sakbichand to arrest him unless 
bis biding could amount to a non- bailable 
and cognizable offence. In the second 
place the learned Counsel for the petitioners 
has produced before me a certified copy of 
the judgment of the case in which Gena 
Tatwa was charged with the offence of 
theft and was acquitted. It being found 
by a competent Court that Gena Tatwa did 
not commit the offence of theft, it follows 
that bis arrest by Sakhiohand was not law- 
ful. It has been argued by the learned 
Government Advocate that the fact of 
Gena Tatwa being acquitted on the charge 
of theft will not make the arrest by Sakhi- 
chand unlawful, if it is shown that in the 
view of Sakbiohand, or in other words, in 
bifl opinion Gena Tatwa did commit the 
offence* This depends upon the interpreta- 
tion of the words " in his view " and accord- 
ing to the interpretation placed upon these 
words by me the arrest of Gena Tatwa can- 
not be said to be lawful. In this view of 
the case I am of opinion that the convic- 
tion of the petitioners under section 225 of 
the Indian Penal Code cannot be sustained. 
The conviction and sentence are set 
aside. The fines, if paid, will be refunded, 

Revision allowed. 



A.I.R. 1926 Patna 64. 

DAWSON MILLER, c.j. AND MAC- 

PHER80N, J. 

Keshub Prasad Singh Defendant-Ap- 
pellant; 

v. 

Ilarihar Prasad Singh and another 
PlaintilTs-Eespondents. 

Privy Council Appeal No. 20 of 1924, 
decided on 2nd June 1925. , 

(a) Patna High Court Rules, Part II, Chap. 
Ill, rr. 12 and 8 Affidavit on an interlocutory 
application- D eel ar am must state the source of his 
belief. 

When in an affidavit on an interlocutory appli- 
cation the declarant makes ft statement of bis 
belief be -phall. if tbe facts are ascertained from 
another person, give such details of such person 
as are nqumd by r. 8, If tbe foots are ascertained 
from a document or copy of a document then be 
must state the source from which it was procured 
and shall state his belief as to the truth of such 
facts, [P. 55, Ool, 1,] 

(b) PractiuBigh Court" Stay of execution /or 
costs is not ordered unless it is dear that the success- 
ful party will have no chance of recovering the 



Where a party baa been successful in a Court of 
Appeal and has been awarded hia costs it is not 
the practice of tbe High Court to stay execution 
for costs except in oases where it is abundantly 
clear that there will be no chance of recovering the 
costs if they are allowed to go unprotected to the 
person entitled to them. [P. 65, Ool, 1,] 

L. N. Singh for Appellant. 
P. G. Manuk, B, B. Lai andfS, Dayal 
for Respondents. 

Judgment. This ie an application on 
behalf of the appellant* to England asking 
that the money deposited in Court to set 
aside a sale in execution of the respon- 
dent's decree for costs amounting to 
Bs. 61,261 should remain in Court pending 
the hearing of the appeal to the Privy 
Council. There was a further execution in 
respect of an additional sum for coste 
awarded at a later period amounting to 
Bs. 31,817. With regard to the first sum 
the appellant has withdrawn his objection. 
Therefore the respondent will be entitled 
to take that sum out of tbe Court, the sale 
being set aside. With regard to the smaller 
sum of Bs. 31,817 the execution proceedings 
have not yet terminated but the appellant 
contends that the respondent if be receives 
this money will not be able to re* pay it in 
the eveiit of the appeal to the Privy Council 
being successful, In support of that the 
petition states that the appellant ie 
informed and believes it to be true that the 
opposite party have not sufficient property 
over and above the property in dispute 
which will enable the petitioner to realise 
his just dues under the decree and costs 
in case the Privy Council reverses the 
decree of the High Court. He further says 
that in the event of tbe decree being re- 
versed by the Privy Council tbe petitioner 
will not be able to realise anything by way 
of restitution from the opposite party as 
tbe petitioner is informed that he has nob 
sufficient property to meet tbe obligation 
arising out of the decree in case the High 
Court's decree is reversed. In that petition 
the source of the petitioner's information 
is not stated. Tbe petition, however, is 
supported by an affidavit: signed by one 
Panohdeo Narayau who describes himself 
as tbe karpardaz of the petitioner and 
states : " I am fully aware of the facts stated 
in the petition. The facts stated in the 
petition are true to my knowledge." It is 
very difficult to know exactly what that 
affidavit is referring to. The facts stated 
in the petition are that the petitioner has- 



1986 



ASHARFI DU1MAB V. MUHAMMAD DIKDALAL 



Patna 55 



been informed that the opposite party will 
not be in a position to refund the money 
if the appeal to the Privy Oounoil should 
succeed. It may be that the person who 
swore the affidavit is aware that the peti- 
tioner was so informed but that is not suffi- 
cient to entitle the Court to aot in a matter 
: of this sort. The rules are clearly laid 
down in the High Court rules, Part II, 
Ch. Ill, rule 12 whioh state that when in 
an affidavit on an interlocutory application 
the declarant makes a statement of his 
belief he shall, if the facta are ascertained 
from another person, give such details of 
such person as are required by rule 8. If 
the facts are ascertained from a document 
or copy of a document then he must state 
the source from whioh it was procured and 
shall state his belief as to the truth of such 
faots. Here the only statement is that the 
petitioner haa been informed of certain 
things. We are not told where he gets his 
information from and it makes it none the 
better that somebody has sworn an affidavit 
saying that the faots alleged in the petition 
are true. The petition before us and the 
affidavit are totally inadequate in our 
opinion to entitle the Court to aot in such 
a case. 

But the matter does not rest there for 
the respondent has himself filed a petition 
supported by an affidavit in whioh he 
states that! he has property in Bihar in 
addition to the property in dispute worth 
20 lakhs of rupees and he refers to au 
admission made by the appellant in 1921 
during the course cf execution proceedings 
when the appellant had got a decree from 
the Trial Court, in whioh the appellant 
admits that the respondent had at that time 
property in Bihar worth Rs. 9,85,000. It is 
quite clear, therefore, that the respondent 
is not devoid of means and even on the 
petitioner's own showing he certainly is in 
a position to restore this sum of Rs. 31,817 
if the petitioner should succeed in his 
appeal to the Privy Council. In our opinion 
this application should be dismissed with 
costs. 

We wi^h to add that where a party has 
been successful in a Court of Appeal and 
has been, a warded hi^ costs it is not the 
practice of this Court to stay execution for* 
- costs except in oases where it is abundant- 
ly clear that there will be no* chance of 
recovering the costs if they are allowed to 
go unprotected to the person entitled to 
them. Tins application is dismissed and 



the order of the 19th May directing (that the 
sum paid into Court should remain there 
pending the hearing of this application is 
discharged. The respondent is entitled to 
his costs of this application. Hearing fee 
five gold mohurs. 

Application dismissed, 



AIR, 1826 Patna 66. 

Ross, j. 
Asharfi Dhimar Petitioner 

v, 
Muhammad Dindalal Opposite Party, 

Civil Revision No. 502 of 1924, decided 
on 3rd March, 1925, from an order of the 
District Judge, Darbhanga, dated 30th 
June 1921. 

(a) Bengal Tenancy Act. S. 174 -Salt set aside 
No appeal lies at the instance of auction purchaser, 

An order setting aside a eale under the provi- 
sions of B. 174 is not appealable at the instance of 
the auction-purchaser. Where however an appeal 
preferred against such an order is entertained by 
the appellate Court and the order is set aside, the 
High Court will interfere in revision if the or dec 
of the appellate Court is wrong on merits. [P, 66 
Ool, a.] 

(b) Bengal Tenancy Act, 8. 174 -Deposit made 
fully but in slightly erroneous manner Sale need 
not be set aside. 

A deposit under 8. 174 need not be made by 
two separate chalan 6, one in favour of the decree- 
bolder and the other in favour of the auction-pur- 
chaser. Where, therefore, the total amount of the 
deposit made by the judgment-debtor was correct, 
the mere fact that tbe deposit was made on two 
chalans as above and that the amount deposited 
on the chalan in favour of the decree-holder was 
slightly in excess and the amount deposited ontbfr 
chalan in favour of the auction purchaser slightly 
less, than the respective amounts due, does not 
afleot the maintainability of the application to set 
aside the s*le, [P, 56, Ool. 2 ] 

Murari Prasad and Anirudhji Burmart 
for Petitioner. 

Saiyid AU Khan for Opposite party. 

Judgment : On the 16bh of February, 
1924, a eale was held in execution of 
a decree for rent and the holding was 
purchased by the opposite party for Bs. 76. 
Ou the 13bh of March, 1924, the petitioner 
deposited in Oourt Bs. 59-0-6 under two 
chalans, tbe first in favour of the decree- 
holder showing, in its original form, the 
deposit of Bs, 55*0 6 and the second in 
favour of the auotion-purohasei showing, 
in its original form, the deposit of Bs. 4. 
The total amount deposited was, therefore* 
Bs. 59-0-6, The amount of tbe decree wa 



66 Pftfeta 



1SHAXPI DHIMAB t>, MUHAMMAD DINDA&AL 



1BS6 



Ba. 55-0 6 and the compensation due to 
the auction- purchaser was Ba. 3-12-0. The 
thalans were subsequently altered, by what 
authority it does not appear, wiih the 
result that the decree- holder's chalan 
became one of Ha. 55-8*6 and the auotion- 
purohaser's chalan one of Bs. 3 8-0, annas 
8 having b^en transferred apparently from 
the latter 60 the former. With these 
chalans the petitioner filed an application 
before the Court stating that he had to 
pay the amount of the decree and compen- 
sation and prayed that the chalans might 
be passed and the sale be set aside. On 
that day the Court ordered chalans to issue 
to the judgment debtor for depositing the 
decree money and costs with compensation 
as prayed for. Oo the 24th of March, the 
order passed by the Munsif was that the 
decree money and costs with compensation 
had been deposited under chalans specified 
and that the sale should be set aside and 
the case dismissed on full satisfaction. 
Subsequently ita was brought to the 
notice of the Court by the office that 
although the total amount due by 
the petitioner had been deposited, in 
fact the distribution according to the 
chalans in their final forms was incorrect, 
too much having been deposited in favour 
of the decree-holder and 4 annas too little 
in favour of the auction-purchaser. The 
Court then ordered on the 31st of March, 
1924, that is beyond the period of limita- 
tion prescribed by section 174 of the Bengal 
Tenancy Act, that 8 annas deposited under 
the decree-holder's chalan should be trans- 
ferred to the auction- purchaser. Theauo- 
tioo-turohaser appealed to the District 
Judge against the order setting aside the 
sale and the learned District Judge has 
ordered an enquiry to be made into the 
alteration in the chalans and has directed 
that, if as the result of the enquiry the 
Muneif finds that the judgment-debtor 
was responsible for the alteration then 
the sale must stand : but if he finds that 
there has been fraud committed then he 
is at liberty to pass final order in the case 
on the merits as would seem to him fit and 
proper. 

The first point taken in this application 
by the judgment-debtor is that no appeal 
lay aUhe ID stance of the auction-purchaser 
to the District Judge. This contention is 
- established by authority and is conceded 
by the learned Vakil for the ( opposite 
He contends, however, that if he 



succeeds on the merits, this is a case in 
which the Court should exercise its 
jurisdiction in revision, even if no appeal 
lay to the District Judge. This is a well- 
recognized principle and il is, therefore, 
necessary to look at the merits of the case. 
On the merits the contention on behalf of 
the petitioner is that the Court had accepted 
the deposit and set aside the sale and the 
money deposited was in fact more than 
sufficient to meet the requirements of 
section 174 ; and it was for the Court to 
distribute the dues between the decree- 
holder and the auction- purchaser. It is ' 
pointed out that there is no rule requiring 
deposit to be made by two separate 
chalans, and that the fact that the distri- 
bution actually made in the two chalans 
was slightly erroneous cannot affect the 
title of the depositor to have the sale set 
aside, when in fact the full amount due 
had been paid ; and that it was for the 
office of the Executing Court to make the 
proper distribution between the parties. 

The argument on behalf of the opposite 
party is that the judgment-debtor chose to 
make the deposit by two chalans and took 
the risk of error ; that the deposit must be 
made in a form which makes the money 
immediately available to the person for 
whose benefit the deposit is made; and 
that the action of the learned Munsif in 
re-distributing the deposit after the period 
of limitation amounts to extending the 
time which he had no jurisdiction to do. 
Now the authorities that were cited for the 
proposition that the deposit must be made 
in a form immediately available have no 
application on their facts to the facts of 
the present case. The money was in 
Court and was immediately available ; and 
the fact that some clerical process had to 
be gone through in the Court* before the 
auction -purchaser could get bis 4 -annas 
does not bring the case within the princi- 
ple of the decisions referred to of which 
the principal was Rahim Bux v. Nundo 
Lai Gossami (1). Nor, in my opinion, was 
time extended by the order of the 31st of 
March. The money was alreadv in Court 
and the transfer of 8-annas from one 
chalan to the other, was merely ft clerical 
matter which had nothing to do with the 
extension of time. The deposit was made 
within the 1 time limited by law aqd the 
fact that some action had to be taken in 

(1) (1887) 14 Oal. ail* 



496 



HABNANDAK DAS V. ATT7L KU1CAB PBASAD 



Patna 57 



iha office 60 make the proper amount 
available to tha auction-purchaser cannot, 
in my opinion, be treated as an extension 
of time. Apparently tbe office of tbe E&e- 
onting Oourb was in error and the judg- 
maot-debfcor was misled aa to tbe exact 
sums payable to tbe decree bolder and to 
tbe auction pure baser respectively, Bat he 
had deposited tbe full amount required by 
law and bis deposit bad baen accepted and 
tbe sale has properly been set aside. 

The order of tha 24th of March setting 
aside tbe sale was, in my opinion, a proper 
order and as no appeal lay at the instance 
of tbe auction-purchaser from that order, 
that order must be restored. Tbe result is 
that the decision of the learned District 
Judge must be sets aside and the order of 
tbe Munsif setting aside the sala restored. 
The petitioner is entitled to tbe costs of 
this application ; bearing-fee one gold 
mohur. 

Application allowed. 



A.I.R. 1928 Patna 67. 

KULWANT SAHAY, j. 

Harnandan Das Applicant. 

v. 

Atnl Kumar PramcL and others Oppo- 
site Party. 

Criminal Revision No. 397 of 1924, 
decided on 9th September 1924, from an 
order of tbe District Magistrate, Bhagalpur. 

Grim, Pro Code, 8. 203 Order of dismissal 
Reasons for dismissal should be recorded. 

Under 3 203, Cr, P. u U mournbant upon 
the Magistrate to record briefly his raaaou for 
dismissing tbe complaint. [P, 57, Col 2.] 

Amruddhaji Barman for Applicant. 

Judgment .-This is an application 
against an order passed by tbe Sub-Divi- 
sional Magistrate of Madhipura dismissing 
the complaint of the petitioner under 
section 203 of the Criminal Procedure 
Code. The order has been upbeld by the 
District Magistrate of Bbagalpur when a 
petition of revision was filed before him. 
It appears tliat on the 27th November 
1923 the petitioner lodged a complaint 
before the Sub-Divisional Magistrate charg- 
ing tbe accused persons who are the 
opposite, party in tbe present application 
with bavin* uprooted a banohoi tihwvjfi 
or flag and demolished a platform naar tbe 
.temple of Mahabirji of which tbe petitioner 



alleges to be the skebait. He further 
complained that the accused persons had 
way-laid the petitioner while be was going 
to the Police station to lodge information 
about the occurrence and to have assaulted 
him and snatched away his wrapper and a 
sum of Bs 21 which be bad about him. The 
learned Sub Divisional Magistrate bv bis 
order, dated tbe 27th November, ordered 
an enquiry to ba made by Babu Kali 
Prasacma Banerji, Tahsildar of tbe Burd- 
wan Estate, under section 202, Criminal 
Procedure Code. Tbere was, however, some 
delay, in tbe papers being sent* to Babu 
Kali Prasanna Banerji, and b 'f ore the 
order could be communicated to him be 
had left tbe place for Burdwan. It appears 
that the peshkar was responsible for this 
delay. Thereupon one Babu Tej Narain 
Sinha, Honorary Magistrate, wa* requested 
to make the enquiry and submit a report. 
He submitted bis report on the 9th 
February. 1924, in whion be stated that 
the allegation of the complainant about the 
dhwaja being uprooted by the creatures of 
the zemindar was true but that his other 
allegations about the theft of money and of 
tbe wrapper ware exaggerations. It further 
appears from his report that tbe dispute is 
going on between the petitioner and Atul 
Kumar Prasad ah as Tub Kumar tbe 
opposite party in the proceeding, who is a 
zemindar of tbe village and that; in a suit 
brought by the petitioner for declaration 
of his title and possession of certain land 
against Tub Kumar he baa obtained a 
deoraa for possession and that it wan on 
account: of tha dispute between the parties, 
that Tub Babu ordered the dhwaja to be 
uprooted and tbe platform to be demolished. 
Now, on receipt of this report the learned 
Sub-Divisional Magistrate by his order, 
dated tha 12^ February, 1924, dismissed 
tbe complaint under section 203, without 
giving any reason whatsoever. His order 
of the 12th February 1924, runs thus: 

11 Dismissed , ^action 203, Criminal Pro- 
cedure Code, vide enquiry report." 

Now, under section 203, Criminal Pro- 
oedura Oo Ie, it was incumbent upon the 
Sub Divisional Magistrate to record briefly 
hia reason for dismissing tbe complaint. 
' No reasons whatsoever are given in bin 
order of the 12tn February, 1924. He 
merely refers to tbe report of the Honorary 
Magistrate but on referring to the report of 
the Honorary Magistrate it appears that 
the allegations of the petitioner about tha 



68 Patna 



BMFBBOB 0, PHAQUNIA BHUIAN 



1086 



uprooting of the dhwaja and the demolition 
of the chabutra are correct. If that is so, 
the matter ought to have been enquired 
into. The learned Sub- Divisional Magis- 
trate has sent a long explanation in reply 
to the notice issued by this Court, but he 
deals with matters which are wholly 
irrelevant to the present application and 
no one has appeared on behalf of tha 
accused persons to show cause against the 
present application. I think the order of 
the learned Sub- Divisional Magistrate dis- 
missing the complaint under section 203 
is bad in law and ought to be set aside 
and the case must be sent back to him 
for disposal according to law. 

Revision allowed. 



* AIR, 1926 Patna 58. 

POSTER, j. 

Emperor Complainant, 
v. 

Fhagunia Bhuian Accused. 

Criminal Reference No. 3 of 1923, deci- 
ded OD llth September 1923, by the Ses- 
sions Judge, Gaya. 

(ft) Evidence Act, 8, 33 Evidence not taken 
according to Ch t 25 t Grim. Pro. Code Evidence it 
not admissible, 

Where the formalities prescribed in Lh, 25 of 
Grim. Pro, Code nre not observed in recording 
evidence, the accused cannot be Raid to have 
bad opportunity to cross examine within 8. 33. 
[P, 60, Col, 1,] 

(b) Evidence Act, 8, 157 Evidence of raped 
git I excluded Evidence of her relatives cannot 60 
used for corroboratwn. 

If the evidence of a raped girl is excluded from 
the case, the evidence of her relatives to the effect 
that she aooueed a certain person of having raped 
her cannot be used as corroborative evidence 
under 8. 157. [P, 60, Col, l.] 

* (o) Evidence Act, S. S Evidence of raped girl 
Voluntary statements made immediately after 
occurrence are relevant* 

If the raped girl went to her relatives straight 
after the occurrence and complained on her own 
initiative about her rape, her conduct would have 
a direct bearing upon and connection with the 
occurrence, but if ehe only answered questions put 
to bar, her statement would be mere hearsay. 
[P, 60,. Col, 3,] 

The Assistant Government Advocate for 
the Grown. 

M. N. Pa J for Accused. 

Judgment : In this case Phagunia 
Bhuian was charged with committing rape 
upon a small girl aged about 6 years by 
name Saniohwa Bhuini, on the 7th of May, 
1923, The Jury returned an* unanimous 



verdict of not guilty, but the Sessions 
Judge of Gaya found himself unable to 
agree with the verdict and has referred the 
case to the High Court under section 307 
of the Criminal Procedure Code. The facts 
are as follows : 

The child Saniohwa was playing near 
the landlord's bouse in her village when 
the accused (whose age is about 22 years) 
came up and offered to give her cooked 
rice if she would come with him. Tha 
accused lifted her up, thrust a piece of 
cloth into her moubh and carried her to ft 
latrine immediately in front of the land* 
lord'g house, that is, in front of Mirao 
Khan's house. Another landlord of the 
village, Warasat, lives in a house behind 
Miran Khan's. Having taken the child 
into the lafcrine the prosecution case con- 
tinues he attempted sexual intercourse in 
consequence of which a rupture was caused 
to the vagina. The child went home and 
informed her relatives. Her cloth was wet 
with blood, and she was carried to the 
thana bleeding, She was subjected to 
medical examination, and the medical 
evidence indicates that some one or other 
had committed rape effecting penetration, 
with the result of very serious injury to 
her person. Saniobwa has died since she 
deposed in the inquiring Magistrate's 
Court. There are upon tbe record two 
statements made by her ; the first is tbe 
First Information looged ab 1 A.M. on the 
8tb May, that is, about 12 hours after the 
occurrence, at the Sberghati Police Station, 
13 miles from the place of occurrence ; tbe 
other statement is her deposition given on 
tbe 21st May, in the inquiring Magistrate's 
Courfc. 

Tbe Sub-Inspector who recorded the 
First Information went to fehe spot and 
arrested the accused on tbe*day after tbe 
date of occurrence and the Senior Sub- 
Inspector subsequently took over charge 
of the investigation the same day. Mean- 
while the accused bad been eent to Gaya. 
On the following day, the 9th May, the? 
Senior Sub-Inspector went also to Gaya 
and examined tbe accused, and on the same 
day the accused was produced before a 
Magistrate and made the follawing state- 
ment : 

" Tbe girl was playing under the 
kanota. 'I induced her to go with, me and 
cohabited with her. When blood began to 
flow I left her. I do nol know her 
name." 



1086 



BMPBROR v. PHAQUNIA BHUIAN 



Patna 59 



In the Sessions Court this confession 
was repudiated by the accused who stated 
that he had been beaten by the landlord 
who bad not paid him wages. He denies 
that he had made any confession and he 
denied having committed rape. 
The prosecution evidence, so far as it 
ia concerned with the actual occurrence, 
consists in the statement of a boy Budhoo 
Khan, aged 6 years, who deposes that he 
had been playing with Saniohwa and that 
he saw her carried off by the accused 
into the latrine, and saw her come out and 
go home with blood upcn her clothes ; in 
the depositions of Saniobwa's brother 
Sukwa, brother's wife, Mularwaand father 
Akkal, who described the child's condition 
when she got home and the account that 
she gave of what had happened ; and in 
the deposition of Imam AH who states that 
Sukwa came to him and told him what 
had happened and showed him Sanichwa 
lying unconscious afc home, whereupon 
be went and arrested the accused and 
brought him before the landlord, Warasat. 

In the face of the medical evidence, it 
is only possible to conclude that the 
child Saniohwa was subjected to the 
lustful violence of one or more male adults. 
Her back, shoulders, and neck bore in- 
juries which, taken with the rupture of 
the vsgioa most infallibly point to a rape. 
It is peculiar that no blood was found 
in the latrine. This latrine is in itself 
hardly a likely place for a man to effect a 
rape, it being directly in front of the house 
of Miran Khan. Its walls are dilapidated 
and there is only one corner where the in- 
terior is not visible from outside, The 
learned Sessions Judge contends that if 
there was a rape there would be no need to 
change the place of occurrence ; but it is 
obvious tbatnfa guilty person in to be 
shielded, it might be necessary to change 
the place of occurrence. Miran Khan's two 
sons, Imam AH and Budhoo Khan, bave 
given most important evidence in the case. 

It ia noticeable that Imam AH did not 
come into the investigation as a witness 
until the llth of May, that is, the fourth 
day of the investigation. The learned 
Sessions Jutfge found Imam AH to be a 
slow and stupid witness and ascribes the 
fact that he was not examined on the first 
day of t}ie investigation, to his 'slowness 
and stupidity. Then be makes the remark, 
which I find absolutey unconvincing, that 
supposing a, false case was being manufac- 



tured a witness like Imam AH would have 
been pushed forward at the first opportu- 
nity, Now Imam AH deposes that he took 
the accused to Warasat Mian, one of the 
maliks of the village. Warasat has nob 
been produced as a prosecution witness. 
The learned Sessions Judge is firmly of 
opinion that the prosecution had no mala 
fide intention in not examining Warasat, 
and he calls attention to the fact that when 
it was realized in the Sessions Court that 
his evidence was necessary every effort waa 
made to produce him, It appears to me 
to be of secondary importance, to consider 
whether the prosecution (which is the 
Crown in this case) was in good faith or 
otherwise. Tbe important facts are that 
Warasat Mian has, on two occasions at 
least, done something which has materially 
affected the course of tbis case. Imam All 
deposes that when he took the accused to 
Warasat, Warasat made the accused wash 
his loin cloth. This was represented to the 
Sub- Inspector to be the reason why the 
accused's loin cloth had no stains of blood. 
Again, Warasat Mian has abstained from 
coming to Court to give evidence of what 
he knows about the case. As to one other 
way in which he has possibly affected the 
course of the investigation, namely, his 
assault upon the accused, I shall have 
more to say later. 

The learned Sessions Judge has sum- 
marised the evidence in, the case under six 
headings : (1) the statement of the girl 
herself, (2) the evidence of Budhoo Khan, 

(3) the evidence of Saniubwa'^ relatives, 

(4) the medical evidence, <5) the evidence 
of Imam AH as to having seen blood on the 
accused's dhoti, and (6) the accused's con- 
fession. I proceed to deal with these, 
with the exception of the medical evidence, 
in their order. 

Saniohwa's statement made in the Court 
of the inquiring Magistrate was not read 
over in the manner required by section 360 
of the Criminal Procedure Code. In 
section 354 it is prescribed that the 
evidence of witnesses must be recorded 
11 in the following manner, " and that 
includes provisions of section 360. Now, 
under section 208 of the Criminal Procedure 
' Code the inquiring Magistrate must take 
" in manner hereinafter provided " (tbis 
refers to Chapter XXV of the Code) " all 
such evidence as may be produced in 
support of (he prosecution or in behalf of 
the accused, or as may be called for by the 



60 Patna 



EMPEROR D. PHAGUNIA BHUUK 



1996 



Magistrate " and " the aooused shall be ab 
liberty to cross- examine the witnesses for 
the prosecution." Now, until the evidence 
is taken in]the manner provided in Chapter 
XXV.it is obvious that there is no occasion 
for cross examination by the defence. Till 
1 the evidence has been properly verified, 
the defence cannot be considered to have 
an opportunity to orofis examine ; so in 
my oi)iniou section 33 of the Evidence Act 
was not applicable to Saniohwa's deposi- 
tion of the 21st May. The learned 
Assistant Government Advocate has 
frankly conceded that Saniohwa's evidence 
mav go out of the case. 

Now I come to the evidence of Budhoo 
Khan. In the first place, Saniohwa in 
her First Information and in her deposition 
in Court denied that any one was with her. 
In the First Information she states that 
she was playing alone. In her deposition 
she states that none was present when 
the aooused took her to the paikhana. In 
the second place, when I read this 
deposition of Budhoo Khan it strikes me 
as having the appearance of a mere 
mechanical statement, He saw the child 
picked up, taken into the paikhana and 
then saw her come out and he accompa- 
nied her to her house, He does not 
describe what the aooused said to the girl, 
or what the girl did, or what her 
condition was when she came out of the 
latrine and went home, He only 
describes the condition of her clothes. 
When questions were put outside the bare 
narrative of the occurrence, he appears 
to have answered at random: "This 
happened in the afternoon, My father had 
gone out to the field*. My mother was 
at home, and sister, and no one else. We 
began playing early. I went home and 
bad a meal, she Hid not come to play again 
after that. Phagunia was collecting cow- 
dung, He abused me, 
Q, Why? 

No answer. After oolleating cow-dung 
be fled, I told my brother. 

Q. What did you say ? No answer. 
This Budhoo Khan is, as I have stated, 
the younger brother of Imam AH. 

As to the evidence of Saniohwa's rela- 
tives to the effect that Saniohwa aooused 
Phagunia of rape, if Saniobwa'a evidence 
is to be excluded from the case, this 
evidence cannot be employed as oorrobo- 
ration under section 157 of t^he Evidence 
Act. As to whether it is evidence under 



section 8 of the Evidence Act (vide 
illustration (;), the question is a debateable 
one whether Saniohwa's statements were 
complaints. If the girl went to her * 
relatives straight after the occurrence and 
complained on her own initiative, there is 
no doubt that her conduct would have a 
direct bearing upon and connection with 
the occurrence itself : but if she only 
answered questions, her statement would 
be mere hearsay. 

Coming to the evidence of Imam AH 
that he saw blood on the accused's dhoti, 
I would first suggest that the evidence 
can only amount to this, that Imam All 
saw marks " as of blood " on the accused's 
dhoti. This witness arouses my suspicions 
not only because be came at late date 
into the case, but also because I find it 
hard to believe his story. He arrested 
the aooused and took him to Warasat 
who forthwith began to beat] the accused 
without questioning him expecting to say 
why have you done tbia ? Then Warasat 
told the aooused to wash his dhoti. All 
this is an extraordinary narrative. It is 
not clear why Warasat was so suddenly 
violent, nor can I understand for a 
moment why it oama into Warasat's head 
to tell Phagunia to wash his dhoti, if 
there was blood upon it. If there was no 
blood, the washing of the dhoti might be a 
useful step in the preparation of a false 
charge against Phagunia. 

Lastly, I come to the confession made on 
the 9th of May. The evidence of Imam 
AH shows that Warasau beat the aooused 
and told him that ifc would be battier for 
him to confess. This was on the 8"h May, 
the Police Officers noticed injuries on 
Phagunia's head, arms and legs, and on 
the 14th May, th* Jail Sub-Assisfcanb Sur- 
geon found 8 marks of violence on Phagu- 
nia's person. Now, Phagunia was produced 
before the Daputv Magistrate to be exa- 
mined under S. 164 of the Or, P. 0. on the 
9th of May. The Deputy Magistrate made 
some show of careful enquiry as to the 
VDluntary nature of the accused's confes- 
sion, but he never asked the accused whe- 
ther he had been beaten and he did nod 
notice any of the, marks on hip person. 

In this oritioism of the evidence my main 
object; has been to show thah at every turn 
through cbe evidence one's path is beset 
with warning signals. The verdict of the 
Jury was "not guilty," "giving the accused 
the benefit of the doubt". The Jury 



1886 



OHAKAURI LAL V. DBO OHAND MAHTON 



Patna 61 



were immediately questioned as to the 
principal points on which they were doubt- 
ful. The questions could hardly have been 
foreseen, and some of the reasons given 
by the Jurors are not coco pie te or convin- 
cing, bub in my opinion they did not act 
unreasonably or insincerely in arriving at 
their verdict of " not guilty." 

For these reasons I decline to accept the 
reference of the learned Sessions Judge. 
I acquit Phagunia Bhuian and direct that 
the accused be discharged from custody or 
bail as the case may be. 

Reference not accepted. 



A.I.R. 1926 Patna 61, 

KULWANT SAHAY, j. 
Chakauri Lai Plaintiff -Appellant 

v. 

Deo Chand Mahton and others Defen- 
dants- Respon dents. 

Appeals Noe. 44 to 49 of 1923, decided 
6n 15th April, 1925, from Appellate Decrees 
of the District Judge, Shahabad, dated 14th 
December, 1923. 

(a*) Custom Proof mutt be given apart from 
cases in dispute. 

A custom must be established independently of 
and apart from cases in dispute, [P. 62, Col. 1] 

(b) Occupancy holding Acquisition o/ right by 
custom Mtre proof of long possession and planting 
trees is insnj}hient* 

The mere faot ot the defendants having occupied 
the lands in dispute for over 40 years and tbe fact 
of their having planted trees upon portions of tbe 
land and of their being granted printed receipts 
would not establish in law a custom that the 
defendants who were sikmi tenants or under- 
raiyals, have acquired the right of occupancy in 
a land. [P. 6^, Col. 1] 

6. S. Prasad and Anand Prasad for 
Appellant. 

Ramanugrah Narain Sinha and N. S. 
Bai for [Respondents. 

Judgment : These are appeals by 
the plamiitf and arise out of suits in eject- 
mend upon a declaration that the defen- 
ants are under-raij/atfs of the plaintiff who ia 
an occupancy tenant of the laud in dispute. 
The plaintilf served notice upon the de- 
fendants under s. 49 of the Bengal Tenancy 
Act asking'them to giver up possession, bub . 
they have failed to vacate the land. The 
plaintiff, therefore, brought the present suits 
for reo6very of possession. The defence 
was that the land in dispute was the 



gujasta kasht of the ancestors of the defen- 
dants and that the plaintiff was a tenure- 
holder and not an occupancy tenant. The 
defendants assert- that they are not stkmi- 
dars or under-ratyatfs of the plaintiff, and r 
therefore, are nob liable to ejectment. 

The Munsif found that the plaintiff waff 
an occupancy tenant and the defendants 
were undsr-raiyals under him, and that the 
land in dispute was not the kasht gujashta 
of the defendants, and that the plaintiff was 
not the tenure-holder. It was further stated 
by the defendants in their written state- 
ment that even as uuder-rat^ato they had 
by custom acquired the rights of occupancy 
in the land. The learned Munsif in deal- 
ing with this point observed thab no evi- 
dence had been adduced about such a 
custom and that the defendants had failed 
to prove that they had acquired occupancy 
right in tbe land in suit. He, therefore, 
made a deoiee in tbe plaintiff's favour and 
awarded mesne profits to tho extent of 
itrda of what the plaintiff claimed. 

On appeal by the defendants the learned 
District Judge has upheld the findings of 
the Munsif as regards the title of the 
plaintiff. Ha is of opinion that the Munsif 
was right m his finding regarding the 
status of the parties, namely, the status 
of the plaintiff being that o! an occupancy 
tenant and that of the defendants being 
uuder-raiyats, The learned District Judge, 
however, has come to the conclusion that 
as under- raiyats t the defendants have 
acquired a right of occupancy in the land 
in dispute. With reference to the obser- 
vation of the Munsif that no evidence 
had been produced to prove the custom 
set up by the defendants the learned 
Judge says that this is so and having 
regard to the nature of the case made by 
the defendants, namely, that they were 
occupancy tenants and not uudet-raiyats 
of the land in dispute, no such evidence 
could be expected on their behalf. 
The learned District Judge has, however, 
considered the faot that the defendants, 
who are nine in number, assert that they 
possess occupancy rights and he says fcbafc 
if the assertion of all these tenants .regard- 
ing their possession of occupancy rights 
is accepted, then the usage in question, 
namely, the usage under which the under- 
raiyats acquire the right of occupancy is 
established. Ha refers to the evidence of 
the defendants themselves to the effect that 
occupancy rights have accrued to them by 



62 Patna 



BIBI HAJO V. EAR SAHAY LAL (Miller, C.J.) 



1926 



virtme of their long possession and by 
virtue of the faot that some of them have 
planted trees upon the holding and by virtue 
of the faot that the plaintiff baa been in the 
habit of granting them printed receipts. 
These three facts are, in the opinion of tha 
learned Judge, sufficient to establish a 
custom under which sikmi tenants or 
unfor-raiyats acquire the right of occu- 
pancy in a land. He refers further to the 
faot that the defendants and their ancestors 
have been in possession for periods varying 
from over 40 to 50 vears and that the 
holding in question had been haodei down 
from father to son. In my opinion the facts 
found by the learned District Judge are 
not sufficient in law to establish a custom 
of underratj/als acquiring occupancy 
rights in the village. The nine oases re- 
ferred to by the District Judge are oases in 
dispute and they by themselves cannot 
go to establish a custom. A custom 
must be established independently of and 
apart from the oases in dispute. Admitted- 
ly there is no other evidence in this 
ease to prove such a custom ; and, in my 
opinion, in the absence of such evidence 
the mere faot of tha defendants having 
occupied the lands in dispute in tha 
present oases for over 40 years and the 
faot of their having planted trees upon 
portions of the land and of Dheir being 
granted printed receipts would not es- 
tablish in law a custom, as set up by tha 
defendants. 

In my opinion the decision of the learn- 
ed District Judge cannot ba supported and 
must be set aside and the decree of the 
Munsif restored. These appeals are, there- 
fore, allowed wich costs here and in the 
Court below. Hearing fee in this Court 
will be assessed in each case at half the 
usual rate. 

Appeal allowed. 



A.IR. 1926 Patna 62. 

DAWSON MILLER, o,j. AND MCJLLICK, j. 
Bibi Hajo and another Appellants 



v. 



Ear Sahay Lai Respondent. 

Appeal No. 161 of 1924, decided on 
17th Maroh, 1925, from Appaliats Order of 
the District Judge, Pitna, dated 12ch May, 



(*) Practice -Duty of Court Court will not 
initial* proceeding*. 

It ia never the duty of the Court to initiate any 
proceedings on behalf of the parties. [P. 63, Ool. 2.] 

(b) Lira. Act, Art. 181 -Execution stayed by an 
injunction Right to execute revives on injunction 
coming to a* eidD-cretholdtr must apply for 
revival within three years from accrual of right 
Lim. Act t Art. 182. 

Where the execution of a deorae has been suspend- 
ed by an injunction of a competent Court, the 
right to execute revives aa soon aa the operation of 
the injunction oeaaea. Therefore a subsequent appli- 
cation for execution by decree-holder must be made 
within three years of the accrual of right, i 0., the 
rUte oa which the operation of injaaotion ceases 
[P, 63, Ool, 37] 

Khurshed Husnain, B. C. Mitra and Ali 
Khan for Appellants. 

Naresh Oh. Sinha and B. N, Mitra for 
Respondent. 

Dawson Miller, C.J. : Tha question 
for determination in this appeal is whether 
an applioabioa file a on tha 7ch August, 
1923, for execution of a decree is barred by 
limitation. Tha Munsif found that it was 
nob barred. Tha Subordinate Judge on 
appeal found that it was and dismissed the* 
application and the decree- holders have 
preferred a second appaal to this Court. 
Tha material facts are as follows : 
The appellants obtained a ran!; daoraa 
against tha respondent on tha 2nd April, 
1917, which was a [firmed on appeal on the 
12th September, 1917. Execution proceed- 
ings were first instituted in 1918, bub were 
dismissed. A saoond application was made 
on tha 23rd May, 1919 and certain proper- 
ty of tha judgment-debtor was attached and 
proclaimed for sala on the 15th September, 
1919. Meantime tha judgment-debtor on 
tha 15 ;h April, 1918, had instituted a title 
suit numbered 136 of 1918, in the Court of 
tha Munsif of Bihar against tha decree- 
holders and others impugning tha decree- 
holders' titla to tha land in respect of which 
tha rentdaoraa had bean obtained and claim- 
ing, amongst other reliefs, a declaration 
that tha ranb decree was null and void. This 
part of his claim was rejected by the Mun- 
sif by his judgment dated the 10th March, 
1919. An appeal was carried to the 
Subordinate Judge of Patna and pending 
the appeal the judgment-debtor obtained 
an order from the Subordinate Judge in 
September 1919, granting an injunction 
restraining the sale in tha execution pro- 
ceedings until the disposal of tha appeal 
then before him. On tha 16th September, 
1919, the Executing Court ordered the sale 
to be stayed until the disposl |of the 



H 986 



BIBI HAJO V. HAB 3 AH AY LAL (Miller, C.J.) 



Patna 63 



appeal before the Subordinate Judge in 
Said No. 136 of 1918, and on the 13th 
November, 1919, the Executing Court 
passed an order in these terms : " Lst 
tbe ease be dismissed at present. " Tbe 
Subordinate Judge of Patina delivered bia 
judgment on appeal in Suit No. 136 on 
the 9th June, 1920, He varied tbe decree 
of tbe Munsif in oer tain respects but affirm- 
ed tbab part of bis decision which rejected 
tbe prayer for a declaration tbat tbe rent- 
decree was null and void. The effect of bis 
decision was to declare tbat the judgment- 
debtor (tbe plaintiff in that suit) was not 
liable to pay rent until certain conditions 
had been fulfilled by the landlords. This 
decision, however, did not and could not 
affect the decree- holder's right to the pre- 
vious rent payable under the rent-decree 
of 1917 which still subsisted and was not 
declared null and void. Tbe injunction 
which had been granted restraining the 
sale in execution pending the bearing of 
tbe appeal in Suit No. 136 thereupon auto- 
matically came to an end. An appeal from 
the Subordinate Judge of Patna was pre- 
ferred to tbe High Court, but no further 
application for an injunction restraining 
the execution proceedings was made. Tbe 
High Court's decision was pronounced on 
the 18th January, 1923, restoring tbe decree 
of the Munsif and a further appeal under 
tbe Letters Patent was dismissed on tbe 
10th May, 1923. The present execution case 
was instituted on the 7th August, 1923, 
which is more than three years from the 
date when the previous case was dismissed 
in November, 1919, and more than three 
years from tbe 9th June, 1920, when the in- 
junction restraining execution came to an 
end. It is, therefore, prima facie time- 
barred. 

Tbe learned Munsif in whose Court the 
present application was presented was of 
opinion that toe operation of the injunction 
continued uo to tbe date of tbe dismissal of 
tho Letters Patent Appeal in the High Court 
in 1923 and that tbe present) application 
was not barred. In taking this view I think 
be was clearly in error The injunction 
was for a limited period only and expired at 
the termination of that period, namely, 
when tbe appeal before tbe Subordinate 
Judge of Pa to a was disposed of. No fresh 
application was made and the injunction 
was never renewed. He also thought that 
tbe effect. of the Subordinate Judge's judg- 
ment in Suit No. 136 was to suspend all 



payment of rents past and future including 
the rent covered by tbe previous decree. In 
talcing this view he was again mistaken. 
The right to recover the rent included in 
tbe decree of 1917 could not be challenged 
in the subsequent title suit unless the 
deoreeitself was declared void, but this 
parti of the claim was rejected throughout 
and onoetbe injunction automatically termi- 
nated on tbe 9th June, 1920, there was no 
longer any bar restraining the decree-holder 
from proceeding with his execution. 

The Subordinate Judge of Patna before 
whom the case went on appeal reversed the 
decision of the Munaif taking tbe view 
which I have just expressed. The decree- 
holders have appealed to this Court from the 
decision of the Subordinate Judge and con- 
tend that tbe previous execution case was 
never finally dismissed and is still panding 
and that there is no limitation for an appli- 
cation to proceed with a case temporarily 
suspended. They further contend tbat it 
was tbe Court's duty to restore tbe case and 
call on tbe parties to proceed as tbe order 
of the 13th November, 1919, in tbe previous 
execution case was not a final dismissal of 
thoae proceedings. In my opinion the effect) 
of the order.of the 13th November,1919, was 
to dismiss the execution case then pending 
with an intimation that an application for 
renewal might be made if and when tbe 
obstacle should be removed. It was, bow- 
ever, for tbe parties to move the Court for 
a reinstatement It so advised. It is never 
the duty of the Court to initiate any pro- 
ceedings on behalf of the parties. An 
application by tbe decree-holder was neces- 
sary to put the law again iu motion and 
even if the present application should be 
treated as one in continuation of tbe pre- 
vious application there must be some limi- 
tation for such a proceeding. Assuming 
that Art. 182 of the Limitation Act does I 
not apply, and it does not help the appel- 
lants, then Art. 181 must, I think, be appli- 
cable and the period of limitation is three . 
years froms the date when the right bo apply 
accrued. The right accrued in this case on 
the 9th June, 1920, when the injunction 
was removed and the present application of 
the 7th August), 1923, is time barred. 'This 
view agrees with the decision of Boss and 
Dass, JJ. in Lai Pasi v. Ramsaran Lai 
'Chowdhry (1) dated the 17th January, 1924, 
where exactly the same question arose for 



A.I.B. (1) 1926 Fata* 998. 



64 Patna 



GOB1NDA BAURI V. KB1STO BAR DAB 



1086 



decision " It is argued for the respondent " 
eaid BOBS, J., in that oaee " that the preseitf 
application should he treated as a continua- 
tion of the previous application. * * 
But, in my view, there must be some limi- 
tation to the continuation of execution pro- 
ceedings and the limitation would appear to 
be imposed by Art, 181." I see no reason to 
differ from the view expressed in that case 
and in my opinion this appeal should be 
dismissed with costs. 

Mullick, J. : I agree. 

Appeal dsmiased. 



A.I.R, 1926 Patna 64. 

KULWANT SAHAY, j. 

Oobinda Bauri and others Plaintiffs- 
Appellants 

v. 
Kristo Sardar Defendant-Respondent. 

Appeals Nos. 943 and 950 of 1922, 
decided on 8th May, 1925, from Appellate 
Decrees of the Offg. Sub- Judge, Maubhum, 
dated 23rd June 1922. 

(a) Ghota Nagpur Tenancy Aot (VI ol 1908). 8. 139 
faction contemplate* eates where relationship 
of landlord and tenant is admitted Where Tenancy 
ie not admitted suit for possession of occupancy 
holding cannot be entertained by Deputy Commis- 
sioner but can be maintained in Civil Oourt. 

This section contemplates a case where the 
relationship of landlord and tenant is admitted! to 
exist between the parties I it does not contemplate 
oaaes where there is a dispute as regards title. 
Whera the relationship of landlord aod tenant is 
not admitted a suit for possession of oooupanoy 
holding on the ground of defendant's denial o( the 
Tenancy right is not cognizable by the Deputy 
Commissioner, and 8. 189 does not operate as a 
bar to the maintainability of each a suit in the 
Civil Oourt, [P, 65, Ool. 1,] 

(b) Chota Nagvur Tenancy Act ( VI of 1908) , 8s 89 
and 83 and 258 -Order under 8.89 of Attesta- 
tion Officer can be revised by Settlement Officer and 
such revision bars a suit in Givil Court by reason 
of 5, 258. 

AH orders whether by khanapuri officers or by 
Attestation Officers have to be made during the 
preparation of the draft Record ot Rights and nil 
auoh orders parsed before final publication of the 
Record of Rights are subject to revision under the 
provisions of 8. 89 of the Act. The order of the 
Attestation Officer is an entry made in the draft 
Record of Rights within the meaning of S. 89 
and therefore the Settlement Offijer has jurisdic- 
tion to revise that entry under the provision* of 
8. 89 of the Act and, therefore, 8. 368 which 
provides that such an order of revision will be 
final and shall have the force and effect of a decree 
of Civil Court, operates as a bar to the suit in 
Givil Court to Bet aside the order, [P, 66, Ool. 2,] 



(c) Land Tenure Qhaiioali ZV.a** OcettpaHe* 
righto. 

Oooupanoy rights oannot be acquired in ghatwali 
lands, (83 Oal. 630 and 1 O.L.J. 138, Foil) 
[P. 67, Col. 1.] 

A.K. Boy for Appellants. 
4. JB. Mukerji and B. B. Mukerji for 
Respondent. 

Judgment : These two appeals are by 
tbe plaintiffs and arise out of two suits 
brought by them (or declaration of their 
title and for recovery of possession of 
certain lands set out in tbe schedules 
attached to tbe plaint. Their ease was that 
the lands in dispute formed the ancestral 
jote jamai right of the plaintiffs and that 
the defendant, who is the ghatwal of the 
village where the lands are situated, forci- 
bly dispossessed them in Agrahayan 1327 
B. S. and that, therefore, they claimed 
recovery of possession on adjudication of 
their title to the land. 

Tbe defence of the defendant was that 
the Oivil Court had no jurisdiction to en- 
tertain the suit and that the suit was triable 
in the Court of the Deputy Commissioner 
alone ; that the suit was barred by limita- 
tion ; that the plaintiffs had DO raiyati in- 
terest in the lands ; that the said lands 
were granted to the ancestors of the plain- 
tiffs by way of maintenance and that on 
the death of the maintenance- holders the 
defendant had resumed the lands and taken 
possession thereof ; that during the settle- 
ment operations the plaintiffs tried to take 
possession thereof as tenants but that by 
an order of the Deputy Commissioner 
possession had been delivered to the defend- 
ant with the aid of the Police. It was con- 
tended that the suit was barred under the 
provisions of section 258 of tbe Chofta 
Nagpur Tenancy Act. 

The learned Munsif who tried the suit 
held that the plaintiffs were, raiyats with 
occupancy rights of the lands in dispute; 
that the suit was maintainable in the Oivil 
Court ; that it was not barred by section 258 
of tbe Chota Nagpur Tenancy Act ; tbafc the 
plaintiffs were in possession of the lands 
till they were dispossessed by the defen- 
dants through the help of the Police in 
Agrahayan 1327 B. S,; that although the 
lands in dispute were situated in a ghat- 
wali village yet the plaintiffs dould acquire 
oooupanoy right in the ghatwali lands. Ha 
believed the receipts for rent produced by 
tbe plaintiffs and decreed the 'suits fo 
recovery of possession, 



1986 



GOBINDA BAUBI V, KRISTO SABD&R 



Pattia 69 



On appeal by the defendant the learned 
Subordinate Judge has set aside tbe decrees 
passed by the Munsif. He has held that 
the suit was barred under the provisions 
of section 258 of the Obota Nagpur Tenancy 
Act, and that the plaintiffs had no right as 
raiyats in the lands in dispute. Ha further 
held that tbe plaintiffs could not acquire 
occupancy right in ghatwali lands. He 
has accordingly dismissed tbe suits. 

The plaintiffs have come up in second 
appeal to this Court/. 

At the hearing of the appeals a prelimin- 
ary objection was taken on behalf of the 
respondent to tbe effect that the suit was 
not maintainable in tbe Civil Court. The 
learned Vakil relied upon the provisions 
of section 139-A of the Cbota Nagpur 
Tenancy Act, and be contended that the 
suit being one for recovery of possession 
by a tenant against bis landlord on tbe 
allegation that tbe plaintiffs as tenants had 
been unlawfully ejected by their landlord 
iheir proper remedy was by an application 
or a suit under clause (5) of section 139 
of the Oh ota Nagpur Tenancy Act and 
under the provisions of section 139-A 
of tbe Act tbe Civil Court bad no 
jurisdiction to entertain tbe suit. The 
objection, in tbe form it has been taken, 
here dees not appear to have been taken 
in the Court below ; moreover it is not a 
preliminary objection to tbe bearing of 
the appeal but an objection on the merits 
of the case relating to the jurisdiction of 
the Civil Court to entertain the suit. 
Having regard, however, to the frame of 
the suit I am of opinion that this objection 
is not sound. Section 139 provides that 
certain suits and applications shall be 
cognizable by tbe Deputy Commissioner 
and shall he instituted and tried or heard 
under the provisions of the Obota Nagpur 
Tenancy Act and shall nob be cognizable 
in any other Court except as otherwise 
provided in the Act; and ol. <5) of the 
section enacts that all suits and applica- 
tions to recover the occupancy or posses- 
tion of any land from which a tenant has 
been unlawfully ejected by tbe landlord 
or any person claiming under or through 
the landlord is one of frhe suits which is so 
cognizable by the Deputy Commissioner. 
This section contemplates a case where 
the relationship of landlord and tenant is 
admitted to exist between the parties ; it 
does not to my mind contemplate eases 
1926 P/9 & 10 



where there is a dispute as regards title. In 
the present ease the relationship of land- 
lord and tenant is not admitted ; tbe plaint* 
iffs expressly stated in their plaint that the 
defendant denied their tenancy right and 
that he has been asserting that tbe plaint- 
iffs had no right to the land in suit There 
was a specific prayer in the plaint for 
au adjudication of the plaintiffs' title as 
occupancy raiyats of the land. Such a 
suu, in my opinion, was not cognizable by 
the Deputy Commissioner, and section 139 
does not operate as a bar to the maintain- 
ability of tbe suit in the Civil Court. 

As regards the bar of section 258 of the 
Chota Nagpur Tenancy Aot.the facts appear 
to be as follows : One Manu Bauri had 
five sons. Tbe eldest son was Haru Bauri 
who was the father of the defendant 
Krishna Sardar. Tbe second son was 
Nafar Bauri who was the ancestor of the 
plaintiffs in Suit No. 986 which gave rise 
to 8. A. No. 950. The third was Gokhul 
Bauri the father of the plaintiffs in Suit 
No. 985 giving rise to S. A. No. 943. The 
remaining two sons were Oopal and 
Mansaram. According to tbe plaintiffs 
their ancestors first came and began 
to live in village Dhakya and acquired 
lands there as tenants* Manu and his 
eldest son Haru subsequently became ghat- 
wals of the village ; but before tbe acquisi- 
tion of the ghatwali interest, the plaintiffs 
assert that their ancestors bad already ac- 
quired raiyati interest in tbe lands. During 
the khanaputi operations the plaintiffs 
were first recorded as tenants of the lands 
in dispute under the defendant ; but, sub- 
sequently, during attestation proceedings 
the names of the plaintiffs were removed 
from the category of tenants and recorded 
in the remarks column as being in posses- 
sion of the lands with tbe share of rent and 
cess payable by them. Tbe defendant there- 
upon went to the Deputy Commissioner ol 
Manbhum and complained that he was the 
ghatwal of the lands in dispute and that 
he had been wrongfully dispossessed by 
his relations, namely, tbe present plaintiffs, 
and asked him for help to recover .poesefc- 
flion of tbe lands. The Deputy Commis- 
sioner by his parwana dated the lotb July, 
1920, directed the officer- in-obarge of the 
Police station to oust tbe plaintiffs from 
the plots in dispute and to put the de- 
fendant in formal possession thereof. The 
defendant accordingly with the help of 
the Polioeobtained possession of tbe a ode 



66 Patna 



QOBINDA BAURI V. KB18TO 8ABDAB 



1896 



in dispute and the plaintiffs were thus dis- 
possessed therefrom. Tbe defendants there- 
after went before tbe Settlement Officer. 
The learned Settlement Officer by his 
order dated 31sb January, 1921, directed 
that the possession of the plaintiffs in 
respeot of the lands in dispute in the 
khatifin as made under orders of the 
Attestation Officer be cancelled. This last 
order of the Settlement Offioer purports to 
be under section 89 of the Obota Nvgpur 
Tenancy Act, and it is contended that under 
section 250 of the Act no suit can be enter- 
tainel in any Oourt to vary, modify or set 
aside either directly or indirectly any deci- 
sion, order or decree of the Djputy Com- 
missioner or Revenue Officer in any suit;, 
application or proceeding under section 89 
of the Act except on tbe ground of fraud or 
want of jurisdiction, and that: every such 
decision, order or decree has the force and 
effect of a decree of a Civil Oourt in a suit 
between the parties and, subject to the pro- 
visions in the Act relating to appeals, the 
order is final. The learned Munaiff came to 
the conclusion that, the order of the Settle- 
ment Officer dated 3 Let January, 1921 
was not) an order under section 89 of the 
Act inasmuch as section 89 pre-supposas a 
proceeding under sections 33, 85 or 86 of 
the Act, and as there was no proceeding 
under any of these sections prior to the 
order of the Slab of January, 1921, and, 
therefore, according to tbe Mansif the order 
purporting to be under section 89 
was ultra vires and without jurisdiction and 
that section did not apply to the present 
oase. Tbe learned Subordinate Judge, 
however, has held that there was nothing 
in the record to show that there was no 
previous case under section 83 but that even 
if it were so, it would maka no difference 
inasmuch as by the Amending Act, VI of 
1920, < Bihar and Orissa) any entry in the 
draft Record of Bights can be revised by 
Abe Revenue Offioer 'if application be made 
$o him within 12 months from the making 
of the entry. He was of opinion that tbe 
' entry m*de by the order of the Attestation 
Offioer was an entry made in the draft 
Record of Rights within the meaning of 
section 89, and that therefore, the settle- 
ment officer had jurisdiction to revise 
that entry under the provisions of sec- 
tion 89 of the Act and, therefore, section 258 
which provides that such an order of revi- 
sion will be final and shall have the force 
and effect of a decree of Oi?il Court, operates 



as a bar to the present suit In my opinion 
the view taken by the learned Subordinate 
Judge appears to bo sound. The order of 
tbe Attestation Offioar mast be taken to 
be an order under section 83 of the 
Act. All orders whether bv khanipuri 
officers or by Attestation Officers have to 
be made during the preparation of the 
draft) Record of Rights aod all such 
orders caused before final publication of the 
Record of Rights are suojeob to revision 
under the provisions of section 89 of the 
AcG. Id is contended that the Revenue 
Officer can reviaa the entries in the draft 
Record of Rights whhin 12 months from 
the miking thereof and in this case there 
is nobbing to show whether the order of 
the 3 1st of January, 1920, was made within 
12 mouths of the order of the Attestation 
Officer. Now, id must ba presumed that 
tue Revenue Officer acted regularly and if 
the bvr of 12 mouths as provided in sec- 
tion 89 is to be availed of, it has to be 
shown by the party pleading such bar 
that there was a bar of limitation and thatf 
the order had been passed beyond 
12 months. There is nothing in the 
record to show that this was tbe case. 
The present suit, therefore, was barred 
under section 253 of tbe Act. 

Having regard to the suit being barred by 
section 253 tbe other points raised in the 
appeal do not really arise. As regards the 
tibia sat up by tae plaintiffs tba learned 
Subordinate Judge has coma to the finding 
that there was absolutely no evidence on 
the record to shoj? thac tbe ancestor of 
the plaintiffs had acquired any tenancy 
right before tbe acquisition of tbe ghutwal 
interest. Ha finds on a consideration of 
the evidence that tbe lauds in dispute were 
held by the ancestor of tbe plaintiffs by 
way of maintenance ; and that after the 
death of tbe maintenance-holders the 
defendant, wno is bheghatwil, was entitled 
to take khas possession of the lands. He 
moreover finds th*t tbe rent receipts pro- 
duced by the plaintiffs ware not genuine 
documents and there was no relationship 
of landlord and tenants between the 
parties. These ara findings of 4 fact which 
are conclusive in this second appeal. 

As regards the question as to whether 
ooouoanoy rights can be acquired in ghat- 
wali lands the cases relied upon -by the 
Subordinate Jnlge sunnorb his contention. 
In Upendra Natk Razra v. Ram Nath 



1926 



NANDAN SINGH V. SIARAM SINGH 



Patna 6t 



Ohorodhury (I) id was held that occupancy 

rights could not be acquired in ghvtwali 

lands, The same view was taken in Mokesh 

Majhi v. Pran Krishna Mandal (2), The 

oases relied uoon by the Mausif do nod 

r el a be bo ghitwili lands but to chaukidari 

chakran laads *nd have no application to 

the present o*se. 

The appeals must be dismissed with oosts. 
Appeals dismissed. 

(1) (1903) 3* 'Jl. 6*0. 

(2) (1905) 1 0, L, J. 138. 



*A.IR 1928 Patna 67. 

MYOPU8RSON, J. 

Nandan, Singh and another Petitioners 

v. 
Siaram Singh Opposite Party. 

Criminal R vision No. 153 of 1925, 
decided on l^h M*y 1925, from an order 
of the Session* JiHse, Muz*ffarpur, dated 
the 2nd M*roh 1925. 

(a) Oiw P. Gifa, S. 145 -Jurisdiction 
Xton-Jnnier or m^jnnder of pirtids does not 
affect j*risiictio>i, 

Tin quaa;i->n of miajoinder of parties doea not 
ozdininly aflhot juris Motion. It ia a question of 
procedure by whnh jurndiotion is not affected, 
whather * oary h*s b<n wrongly included or 
excluded, [P 6<3, Col. I ] 

(b) Grim P o. Goto, 8. /45 Absent of notic* 
to one of <h* wt'WfW.i ^001 not renter whole pro- 
ceedings wit ho it j Hrfoiittlon* 

Whera one of the membara of one of the parties 
ia not 89tV3d wtb <i uoUoe the pr -needing are bd 
so far as th*t ra^mbar is aonoarnefl bat the invali- 
dity of the proceedings *qi'n3t one ra^mb^r doea 
not necessarily invalidtta the whole proceeding. 
(P, 68, Ool. t,] 

(o) Orim. Pro. 0d*, S. 145 -Minnr mad party 
to order under 8^-8 (1 Notice not served on 
him Jfiior is n>t a nflcasia'v p*rty t 't 

Whera a oaiaor w*9 mill party to the order 
which w^i dr**M uu under 8db-3. (1) but no 
notice w*s served on him, 

Held, though the minor wvi a proper party 
being interested in the dispute, he wi9 not a 
necessary party especially as he would not be a 
party lik!y to cause a breach of the peace, 
fP. 68, Ool. I] 

P. C. fly-f r the Petitioners. 

B. P. Jimnir for the Opposite Party, 

Judgmetat This Rale has been issued 
to consider the queation whether the 
Sub-Divisional Magistrate of Muaff*rpur 
acted without inrUdioMoo in a proceeding 
tinder section 145 of the Criminal Procedure 
Qode, in which be decided against the 



second party of which the petitioners 
Nandan Si ugh and Hirdey Singh were 
members. 

The {nets are as follows : 

In a Collaborate partidon the division 
was under order of the Board of Revenue 
made upon the basis of the entries ia the 
Record of Eights, (which show as bakasht 
malik certain lands claimed by various oo- 
sharera aa their raiyati lands; " without 
prejudice to the question whether the pro- 
prietors concerned have a raiyat', status or 
not and without prejudice when possession 
is given upon completion of the partition 
to the rights of any parties in cultivating 
occupation." Ddlivery of possession of 
takhtas was given in 1922 and eaoh set of 
co-sharer landlords took over the lands 
within their own new takHta which were 
shown as bakasht malik in the Rooord of 
Bights. The joint family of the present 
petitioners consisting of Nandan Singh and 
Hirdey Singh adults, and Rirnloohan Singh 
minor, took possession of bakasht lands 
previously held by the opposite party and 
the opposite (first) party took possession o! 
bakasht lands previously held by the peti- 
tioners. Tiereafter tho petitioners sold 
their takhta and having no land left en- 
deavoured to retake possession of the lands 
formerly in their cultivation which had 
fallen in the takhta of the opposite party 
and had been taken possession of by them. 

That the Magistrate rightly held thattha 
opposite p*rty was in possession of the 
lands iu dispute is iacontrovertrihle. II) is 
urged, however, that his proceedings were 
without jurisdiction in the following oir- 
oumscanoes. He made party to fchn order 
which he drew up un lor sub-seotion(l) not 
only the petitioners bub their minor brother 
Bimloohan. Tho process server, however, 
returned the no f Joe issued on Runbohan . 
under sub-seotiion (3) with fche reporb 
'* Bimloohan Singh is a minor. Therefore, I 
have returned the notice issued in his name 
in whioh he is nob disoribe? a* a minor,' 1 
No further steps were 6>ikoa to serve notice 
upon the minor and in the written state- 
ment which the petitioners filed they took 
obj action that the proceeding so far as it 
concerned Hamloohan, was illegal because 
. he was not repreaantei by a guaniian and 
that as a result tha whole nrooeodmg waa 
without jurisdiction. The Migu&rate took 
no action upon this objection an i eventually 
made an order under aub- section (6) 
against all tihree brothers. 



Pain a 



DEBI DAYAt. SINGH V. MT, GANOO KTJER 



Now this application IB made by the two 
major brothers only and Kamloohan Singh 
is no party to it. Ik may well be that the 
proceeding having been taken without 
notice to him and in biff absence is bad in 
law, so far as he is concerned, for the 
reason that the Magistrate had no jurisdic- 
tion to pass tho order so far as it affected 
him. But that is not to say that for that 
reason the whole proceeding is without juris- 
diction. The decision of the Full Bench 
in Krishna Kamini v. Abdul Jabbar (I) 
is authority for the view that the question 
of nonjoinder and non-joinder of parties 
does not ordinarily affect jurisdiction. It 
is a question of procedure by which juris- 
diction is not affected, whether a party has 
been wrongly included or excluded. The 
invalidity of the proceeding against one 
member of the petitioner's party does not 
necessarily invalidate the whole proceeding. 
1 Tbeminor, though interested in the dispute 
and a proper party, was not in the circum- 
stances an essential party, especially as he 
would not be a likely person to oauee a 
, breach of the peace. Thus the proceeding 
is not without jurisdiction in respect at 
least of the persona who were actually 
parties, and were not prejudiced, and it is 
palpable that petitioners were not prejudi- 
ced. 

The Eule is, therefore, discharged. 

Rule discharged. 



(1) (1903) 30 Cal. J65-6 C.W.N. 737 (F.B.) 



A.I R. 1886 Patna 68. 

KULWANT SAHAY, J. 

Debi Day a I Singh and others Defen- 
dants-Appellants 

v. 

Mt. Gango Kuer and others PJaintiffs- 
Bespondents. 

Appeals Nos. 338 and 339 of 1922, 
decided on 25th March, 1925, from Appel- 
late Deotees of the Sub Judge, Second 
Court, Gay a, dated 8th February, 1922, 

(a) B* T. Act, 8. 103 (b)-Enlry in the Rtcord 
of Rights as to the tenant's right to trees does not 
carry the presumption of coirtctness. 

The entry in the Record of Rights as regards the 
fruits and timber of the trees which tho we that 
the tenants are entitled to appropriate all the 
fruits and timber of the trees and that the land- 
lords are not entitled to anything, does nob carry 
A presumption of correctness under 8,109 (6), 67 
J, 0. 126, Foil [P. 70, Col, l.J 



(b) Landlord and Tenant Right to trees 
Tenant is to cut trees ani landlord is to appro- 
priate wood. 

The ordinary law is that the tenant has a right 
to cut the troos and the landlord has the right to 
appropriate the wood, [P. 70, Ool. 1.] 

S. N. Dutttor Appellants. 
Kailaspati for Respondents. 

Judgment : These two appeals by 
defendants Nos. 1 to 3 arise out of the 
same suit. The suit was for a declaration 
that two survey plots Nos. 900 and 901 
recorded in khata No. 13 in Motiza 
Ukarmha Salem, which contains 1.18 acres 
of orchard land covered with a large 
number of trees, formed the bhaoh holding 
of defendants Nos. 1 to 3 and that the 
plaintiffs and defendant No. 4 were 
entitled to appropriate one-half share of the 
fruits and the wood of the trees standing 
on the land and that the entry of kabil 
lagan in the survey papers was wrong. 
There was a further prayer that if the 
Court be of opinion that the plaintiffs could 
not get the price of their share of the fruits 
from defendants Nos. 1 to 3, then a 
decree might be passed against the said 
defendants for the price of the entire 
landlords' share of the fruits. There 
was an alternative prayer in the plaint 
that if the Court was of opinion that) 
the entry of kabil lagan in the Eecord of 
Bights was correct, then a proper rend 
might be assessed by the Court. The 
defendants Nos. 1 to 3 filed a written state- 
ment in which they denied the title of the 
plaintiffs and alleged that the suit was bad 
for defect of parties. They fuither alleged 
that the orchard was held by them as 
belagan or rent-free and no rent was pay- 
able therefor, and that the plaintiffs or the 
other landlords, were not entitled to a half 
share of the fruits or the wood of the trees. 

The learned Munsif found that the plain- 
tiffs bad established their title, and that the 
land was held by the defendants as bhaoli, 
but he dismissed the suit on a finding that 
the 16-annas landlords were not made 
parties to the suit and that the suit was bad 
under section 148- A of the Bengal Tenancy 
Act. He held that the trees* were ijmal 
amongst all the 16- annas proprietors of the 
village and all those proprietors were neces- 
sary parties to the suit, 

There were two appeals before the Sub- 
ordinate Judge against this decree one by 
the plaintiffs and the other by the defen- 
dants Nos. 1 to 3. The learned Subordinate- 



DHBI DAYAL SINGH V. MT. GANGO KUER 



Patna 



.Judge decreed the plaintiffs' appeal and 
directed that; the defendant No. 4 be added 
as oo-plaintiff and the amount of the bhaoli 
rent to which the plaintiffs are entitled bo 
determined by the Munsif. As regards the 
defendants' appeal the learned Subordinate 
Judge found that the land was held by 
defendants Nos. 1 to 3 as bhaoli and that 
the landlords were entitled to one- half share 
of the fruits and the wood of the trees. He 
accordingly dismissed the defendants' 
appeal. 

Defendants Nos 1 to 3 have therefore, 
preferred the present two appeals to this 
Court, and it has been contended on their 
behalf that upon the findings arrived at by 
the Munsif as well as by the Subordinate 
Judge himself, the suit was not maintain- 
able on account of defect of parties. 
Secondly, it has been argued that the learn- 
ed Subordinate Judge was wrong in hold- 
ingthat the land was bhaoli and not belagan. 

As regards the first point, it appears from 
the allegations of the plaintiffs themselves 
in their plaint that Mama Ukarmha Salem 
was partitioned by the Civil Court into 
seven takhtas. The plaintiffs and the de- 
fe octant No. 4 were allotted one of these 
takhtas to the extent of their original share 
of 2 annas 8 dams 17 kauris 9 bauris. This 
new takhta of the plaintiffs and the de- 
fendant Mo. 4 is known as Takhta Sheikh 
Bahim Baksh and is now treated as one of 
16 annas. The plaintiffs alleged in the 
plaint that since the partition which was 
effected in 1898, the proprietor of one takhta 
has no connection with the takhtas of the 
other proprietors with the exception of the 
lands and trees left joint under the said 
partition. It has been held by the learned 
Munsif that the trees standing on survey 
plots Nos. 900 and 901 were left ijmal 
amongst the proprietors of the entire 
16-annas of fha village and were not parti- 
tioned amongst them. This finding does 
not appear to have been disturbed by the 
learned Subordinate Judge, as in dealing 
with the appeal of the defendants, he says 
that no raibandi was fixed in the partition 
for the trees in dispute because they were 
left ijmal anaongat the proprietors. If that 
is so, then the plaintiffs and the defendant 
.No. 4 did not form the Qntire body of land- 
lords who are entitled to the rent of the ' 
orchard in dispute. In dealing with the 
plaintiffs' appeal the learned Subordinate 
Judge has lost sight of this f aob. He has 
treated the plaintiffs as wall as the defen- 



dant No. 4 as toe 16 annas proprietors en- 
titled to the rent of the orchard fn dispute. 
He has not come to any specific finding as 
to whether or not the trees in dispute were 
partitioned in the Civil Court partition and 
allotted to the takhta of the plaintiffs and 
defendant No. 4, or were left ijrnal 
amongst) the entire body of proprietors of 
the whole village. The observation about 
the trees being left ijmal made by the 
learned Subordinate Judge when dealing 
with the appeal of the defendants is not a 
specific finding upon this point. He was 
there considering the question as to whe- 
ther the land was bhaoli or rent-free and 
he met the argument of the defendants 
that no raibandi bad been fixed for the 
trees by observing that this only meant 
either that the trees did not belong to the 
maliks but to the tenants or that they were 
left ijmal. I am of opinion that having 
regard to the faot that the Munsif bad dis- 
missed the suit, not only on the ground 
that it was bad under section 148- A of the 
Bengal Tenancy Act, so far as the defen- 
dant No. 4 was concerned, but also because 
the other proprietors of the entire village had 
not been im pleaded as parties, the learned 
Subordinate Judge ought to have ocme 
to a specific finding as to whether or not 
the other proprietors are necessary parties 
in the present suit. His decree, therefore, 
passed in the appeal of the plaintiffs musfc 
be set aside and the case remanded 
to him for a finding as to whether 
the trees on the plots in dispute were 
left ijmal amongst the proprietors of the 
entire village in the Civil Court partition 
and as to whether the present suit oould 
proceed in their absence. 

Second Appeal No. 339 is, accordingly, 
allowed and the case remanded to the 
Court of Appeal below for disposal accord- 
ing to law. Costs will abide the result. 

As regards the appeal of defendants 
Nos. 1 to 3 the finding of the learned Sub- 
ordinate Judge that the laud was bhaoli 
and that the landlords were outitled to 
have the fruits and the wood of the trees 
is a finding of faot which cannot be inter- 
fered with in second appeal. The learned 
Counsel for the appellants has, however, 
argued that the entry in the Record of 
Eights as regards the fruits and timber of 
the trees, in dispute is kul-haq-raiyat 
which shows that the tenant defendants 
are entitled to appropriate allthe fruits and* 
timber of the trees and that the landlord* 



Patna 



80BHIT MALLAH 9. EMPEROR 



1926 



are not entitled to anything. The learned 
Subordirate Judge is right when he holds 
that this entry in the Record of Bights 
does oot carry a presumption of correct- 
ness under section 103 'b) of the Bengal 
Tenancy Act. The ordinary law that the 
tenant has a right to cut the trees and that 
the landlord has the right to approbate 
the wood is accepted by the learned Counsel 
for the appellants, but he argues that the 
Question as to whether the tenant is enti- 
tled to appropriate the timber is cne of the 
incidents of the tenancy which th? R* venue 
Officer in paring the Eecord of flights was 
entitled tort cord under section 102 'h) of 
the Bengal Teranoy Act. The learned Sub- 
ordinate Jtd^.e is of opinion that it is not 
one of the incidents of tie tenancy, but it 
amounts to a custom or usage varyirg the 
common law and that the Revenue Officer 
in preparing the Record of Bights had no 
power to record the existence of any such 
custom, and that the entry of kul-hoq- 
raiyat in the Record of Rights is not an 
entry which carries with it the presump- 
tion of section 103 (b}. This opinion of the 
learned Subordinate Judge is supported by 
the decision of this Court in Suresh 
Chandra Rai v. Sitarom Stngh (1 and the 
entry of kul hog raiyot in tbe Record of 
Bights is only a j iece cf evidence admissi- 
ble under section 35 of the Indian Evidence 
Act, which the learred Judge has taken 
into consideration as such. 

As regards the plaintiffs' claim of half 
share of tbe fruits, tbe learned Judge has 
believed the plaintiffs' witnetfte and has 
held that the orchard was bhooli and tbe 
land-lordf were entitled to recover a half 
share of the fruits. These findings being 
based upon a ccnpideration of tbe evidence 
in tbe we nro conclusive and the Second 
Appeal No. 338 is, therefore, dismissed 
with costs. 

Appeal dismised. 



(1) (1920) 57 I.C. 



*A,I.B. 1988 Patna 70. 

ADAMI AND MACPHERSON, jj. 
Sobhit M allah Petitioner. 

v. 
Emperor Opposite Party. 

Criminal Revision No. 341 of 1924, 
decided on 22nd July 1925, from an order 
of the Sessions Judge, Mtz<*flarpur. 

Cr<w. Pro. Cede, 6. 250 3 - Total amount of 
commentation is the basis 10 cttctce an inability. 

There is nothing in B. 2CO to tbtw that aa 
appeal will only ie when tbe ctmptDf-aticn dire fr- 
ied to be paid to each individual arcmed is more 
than Re. 60. Ut.der Bub 8tc (3/ a c n.^lhiraDt^ho 
hae been ordered by a Magistrate 10 ^ty ccmpen- 
Eation excetcirg R* tO bus ibe nghi oi appeal* 2t 
is tbe total amtuut of ccnopemation directed to 
be paid by tbe cdnplairatii wbitb n uet form tbe 
basis cf ibe deciticu whether an apital Jiea or not. 
[P. 71, Col. l.] 

K. N. Moitralor Petitioner. 

B. C. De. for T. N. Sahaytor the 
Crown. 

Judgment : Tbe only questicn which 
arises in this case is wLeilitr an appeal 
lies against an order lasted ty 8 Magis- 
trate of tbe First Cla&t utder 8. 250, 
Criinirial Procedure Cede directing the 
ccmplaJLant to pay to eacb ci tbe several 
accused as ccmpenEatiou a sum Jess than 
Rs. 50 tbe aggregate eum to be paid to all 
tbe accused amounting to more than 
Re. 50. In tbe present cate tbe Deputy 
Magistrate oroered ccmieDtaticn oi RB. 25 
lobe paid to eacb of tbe eleven accused 
per&cne, tbe aggregate thus amounting to 
Re. 275. 

Tbe learned Set si one Judge, xvben the 
appeal was brought before him ogainst the 
order of cc mi elation, held tbat no ac peal 
lies under cl. \3) of !S. 250 tclt^s ibe com- 
pensation to be (aid to aty ere accused is 
overRs. 50. In eup|.crt of ibis finding, 
tbe learned Seseiors Jurge Ftetcs tbat he 
holds tbat Sub S. 3) of B. 250 JB control- 
led by the voiding of Sub S. (2) of thafe 
section. It is difficult to uudeibtaitd what 
grounds he has for bis finding for even if 
Sub-section ( 2> does control Sub-tection (3) 
, there is nothing to show that an'af peal will 
only lie when the compensation directed to 
be paid to,each individual accused is more 
than RB. 5*0. Sub- section (3) elates tbat a 
complainant who baa been ordered by a 
Magistrate to pay compensation exceeding 



1986 



SADHU SAO 0. AWADH BIHAR BARAN SINGH (Da 8, J.) Patna Tl 



Bs. 50 baa the right of appeal. It ia quite 
evident that it ia the total amount of com- 
pensation directed to be paid by the com- 
plainant which must form the basis of the 
decision whether an appeal liea or not. 
The compensation is a fine which the 
complaisant has to pay for instituting a 
false and frivolous or vexatious case and 
his right to appeal clearly depends on the 
total amount of that compensation. It is 
obvious that the creterion is the amount 
of compensation directed to be paid in the 
case. Section 250 begins with tbe words 
" If in any case " and in Sub-s. <4) we read 
the words "when an order for payment of 
compensation to an aocueed person is made 

in a case " 

Tbe prepeuii caee must go back to the 
learned Sessions Judge in order that he 
may bear and decide tbe appeal according 
to law. 

Petition accepted. 

Case remanded. 



A.I.R. 1826 Patna 71. 

DAS AM) ADAMI, jj. 
Sadhu Sao Defendant- Appellant 
v. 

Awadh Bihar Saran Singh and others 
Respondents, 

Appeal No. 815 of 1922, decided on 
8th April, 1925, from tbe Appellate Decree 
of the Add). Subordinate JucJge, Patna, 
dated 7th June 1922. 

Bengal Tenancy Art, 8. 87 No Abavdcnwevt 
where tenant usutru< tuaniy mortgages his holding 
but still resides in the village. 

Where tbe transfer. IB ky vay of usufructuary 
mortgage, tbe JhEcIcid, tbccgb be bae not con- 
aerjtfd, IB cot crd'Barily entitled to recover posses- 
sion of tbe bcldii g, urJtes there bas been ?a) an 
baQdcrmect witbir eectiou 67, or (6 a relin- 
qtriet merit of'tbe bcldirg, or le) a repudiation of 
tbe tenancy. [P 73, Co). 1.) 

ID order to mnke cut. a caee of abacd- 
DXDCDt ucder 6, 67, ibe latdlcrd muefe 
establish, Pint, that ibf rc^at baa volcntBriJy 
abandoned hie midfrce without cciice to bim J 
Qtccndly, tbai be baa rot arm pf d for payment of 
hie rent ae it fa))* cue, arc, Thirdly, tbat be has 
ceased to cultivate hie hcldii p tuber by b'meelf 
or by ecnu. otbrr perKD. Where therefore tbe 
tenant executed a usufructuary mortp&fce, but be 
still rciidgd io (he village and tbe equity of 
redemption still veetcd in Lim. 

Held, that there was DO abandonment within 
S, 87. [P. 73, Go). 9,] 

8. Dayalto* Appellant. 
8. N. Boy for Respondents. 



Das, J. : This appeal is on behalf of thfr 
defendants and it arises out of a suit insti- 
tuted by the plaintiffs-respondents for 
recovery of possession of certain kashi 
lands specified in the plaint, Tbe Courts 
below have differed in opinion, the learned 
Subordinate Judge in the Court below 
having given the plaintiffs a decree sub- 
stantially as claimed by them. 

Tbe admitted facts are as follows : 
Defendant 2 had a holding under the 
plaintiff in touji No. 2299. He executed 
a usufructuary mortgage in favour of 
defendant No. 1 and pub him in possession 
of tbe entire holding. There was a con- 
troversy in tbe Court of first instance on 
the question whether tbe document 
executed by defendant No. 2 in favour of 
defendant No. 1 was one of mortgage or 
one of sale. Both the Courts below have 
concurrently come to the conclusion that 
the document was one of mortgage. The 
plaintiff ooatends tbat defendant No. 1 has 
abandoned the holding by executing the 
usufructuary mortgage in favour of defend- 
ant No. 1 and by giving up possession 
and ceasing to pay rent. It appears, 
however, tbat defendant No. 2 is a 
resident of mouza Kalapur and that be has 
three holdings in Kalaiur, one in touji 
No, 4353, one in toui% No. 2699 and one 
in touji No. 4366 ; We are concerned 
in this litigation with the holding in touji 
No. 2699, but it is not disputed before us 
tbat the tenant is stil) in possession of two 
other holdings, it is true, under different 
landlords, but in the same village. The 
holding with which we are concerned in 
this litigation consists entirely of agri- 
cultural lands and as tbe learned Subor- 
dinate Judge has found, there is no bouse 
which forms part of the holding. But 
the holding in touji No. 4366 consists of 
a hoDFe and a plot of agricultural land ; 
and it is not disputed before us that defend- 
ant No, 2 is etiil in occupation of 
his beuFe in village Ealatur, touji 
No. 43C6. 

The conclusion at which the learned 
Subordinate Judge fcas arrived may be 
stated in his own words : 

" In tbe present caee, tbe tenant part* 
with possession of bis holding, without 
arranging fcr payrcentof rent to the land- 
lord by himself. He has bis bomesread and 
holdings under other landlords, and baa 
abandoned the holding in tbe only way in 
which hq can give effect to bis intention) 



T9 



IUDHU SAP V. AWADH BtHAB 8ABAN 



(D*8, J,) 



1800 



to abandon the holding, namely, by cea- 
sing to cultivate and omitting to pay rant 
In these oiroums&anoes, I am of opinion 
that there has been an abandonment, 
and I hold that the appellant must) 
' succeed." 

Ibis settled law that where the transfer 
is by way of usufructuary mortgage, the 
landlord, though he has not consented, is 
not ordinarily entitled to recover possession 
of the holding, unless there has been (a) 
an abandonment within the meaning of 
section 87. of the Bengal Tenancy Act, or 
(b) a relinquisnment of the holding, or (c) 
a repudiation of the tenancy. It is not 
contended in this ease that there has been 
either a relinquishment of the holding or a 
repudiation of fcha x tenancy ; but* it is 
strongly contended on behalf of the res- 
pondents that there has been an abandon- 
ment within the meaning of section 87 of 
fche Bengal Tenancy Act. Bub as has been 
held in this Court, the first condition to 
constitute abandonment under section 87 
of the Bengal Tenancy Act is the voluntary 
abandonment of his residence by the 
raiyat. In this case it is not disputed that 
the tenant has nob abandoned his residence. 
The learned Subordinate Judge in the 
Oourb below has taken the view that 
abandonment of the residence must mean 
abandonment of bis residence under the 
same landlord, so that where a tenant has 
not any residence under the landlord who 
is seeking to recover possession of the hold- 
ing, it is sufficient for tbe landlord to prove 
that the tenant has not arranged for pay- 
ment of his rent as it falls due and has 
oeased to cultivate his holding either by 
himself or by some other person. The 
learned Subordinate Judge points out that 
if any other construction were placed on 
the words of section 87 " there will be the 
anomalous position that there can be 
abandonment by a non-resident tenant, 
that is to say, a tenant who does not reside" 
in the village in whioh he has his holding 
and the learned Subordinate Judge comes 
to the conclusion that) tbe holding and the 
house of the tenant must be under the 
same landlord. 

With all respect I am unable to agree 
with this view. The question is one of 
forfeiture ; and there is no injustice in 
requiring a case of forfeiture to be strictly 
proved. The essence of abandonment is the 
giving UD of .the residence without nofrioe 
Ao fche landlord. I confess that I do not 



appreciate the difficulty that seems to have 
oppressed the learned Subordinate Judge. 
He says that any other construction would 
involve the consequence " that there can- 
not be an abandonment by a non-resident 
tenant " ; and he points out that " there 
is no point in giving notice of abandon- 
ment to a person under whom the house 
is held, when the holding is hold under a 
different landlord". But section 87 does 
not provide for any notice to be given to 
the landlord ; it points out the consequence 
of a raiyat abandoning his residence with- 
out notice to his landlord when the 
abandonment is accompanied by other 
acts mentioned in the section. " Abandon- 
ment of the residence " is an unequivocal 
act showing an intention not to return 
and it is a matter of no consequence that) 
the residence is under a different landlord. 
In my opinion, the section means what it 
says, and in order to make out a case of ( 
abandonment under section 87, the land- 
lord must establish, first, that the raiyat 
baa voluntarily abandoned his residence 
without notice to him ; secondly, thati he 
has not arranged for payment of bis rent 
as it falls due, and, thirdly, that he has 
ceased to cultivate hia holding either by 
himself or by some other person. In the 
present case the tenant has executed a 
usufructuary mortgage ; but he still resides 
in the village and the equity of redemption 
is still vested in him. On what ground oan 
we say that there is abandonment 
within tbe meaning of that term as used 
in section 87 of the Bengal Tenancy 
Act? 

In my opinion the decision of the learned 
Subordinate Judge is erroneous and I must 
allow this appeal, set aside the judgment 
of the Court below and restore the judg- 
ment of the Oourt of first instance. The 
result is that the suit is dismissed with 
costs in all the Courts. 



Adami, J. I agree. 



Appeal allowed. 



1086 



LAUBEflTlUS BKSA V. DUKHI KOBRI 



Patoa 79 



AIR 1826 Patna 73, 

JWALA PRASAD, J. 

Laurentius Ekka and others Plaintiffs- 
Petitioners 

v. 

Dukhi Koeri and another Defendants- 
Opposite Party. 

Civil Revision Nos, 3RI and 382 of 1923, 
decided on 13bh Maroh, 1924, from an order 
of the Sub Judge, Ranohi, dated 9th 
June 1923. 

(a) L&gil Practitioners Advocate can b* verbally 
appointed and cai present an duplication on behalf 
of clients without vikalatnamaCiv. Pro. Code, 
0. 3 t r. I, 

An Advocate, unlike a pl.3*dsr, nan bo verbally 
appointed to aot on behtlf of bid client, and whan 
so appointed, under R, 1 of 0. 3 be oan appear, 
plead and aot, There is nothing to prevent an 
advocate, eitl.rr ia th i H gh Court or in the 
subordinate Courts, to present, AD application on 
behalf of his oli^at without. ;un piwer of appoint- 
ment or vakalatnfima given to him in writing. 
There is nothing ia the L.'gii Priofcr/oners 1 Aot 
also against this view. 9 All. 617 Pod [P, 74, 
Col, 2,] 

(b) Limitation Act t 8. 5 -Petition out of time 
No reason for delay shown en the face of id 
Petition is not ewer tain able. 

It ia a well reongnisR 1 priaonla that a petition 
filed out of time must HQO.V on the fane of it the 
reaooo for delay, anrf there must further be an 
express prayer for condonation of the delay under 
the section, [P, 75, Ool. k J.j 

(o) Compromise *y pleadtr without instructions 
from party and without hi< consent Valid if bona 
fide in the interests of the party. 

On principle, there does not seem to be any 
reason for interfering with a compromise consented 
to by a ph icier duly authorized in this behalf, 
unleen fraud or collusion is imputed to the pleader, 
[P. 76, Ool, 1.] 

Harihar Prasad Sinha for Petitioners. 
Sambhu Siran for Opposite Party. 

Judgment This is an application 
against an or'der of the Subordinate Judge 
of Ranohi, dated the 9bh June, 1923, rejeot- 
ing an application of the petitioners present- 
ed under Order 47, rule 1 of the Oivil Proce- 
dure Oode for review of a Judgment, dated 
the 23rd December, 1922 passed by him. 

The petitioners were plaintiffs in the case 
and sought *o recover possession of the dis- 
puted land on a declaration of their title 
thereto as 4heir ancestral Bhuinhari land. 
The defendants, on the other hand, claimed 
to be in possession of tbe property under 
a purchase made by their father in 1873 
from one Sheikh Bhukun, an auction 
(Purchaser of .the land. Tbe plaintiffs' 



suit was dismissed by tbe Munsif, 
and the appeal filed by them was placed 
in the file of the Subordinate Judge for 
disposal, The arguments of both sides 
concluded on the 20th December. On the 
23rd December a compromise petition 
was filed before the learned Subordinate 
Judge. The petition was signed by the 
defendants and their pleader, and on 
belmlf of tbe petitioners their pleader 
signad the same. By the petition of 
compromise the Bhuinhari title of the peti* 
tioners was admitted and acknowledged 
by fcbe defendants, and fche defendants were 
allowed to hold the disputed land as ooou 
panoy raiyats under the plaintiffs on pay* 
ment of rent at the rate of Re. 3 per acre, 
the rent being revis^ble at the time of the 
preparation of the Kecord of Rights, The 
appeal was disposed of in terms of the 
compromise petition per judgment of the 
Court, dated the 23r<i December 1923. 

Tne petition for review of the judgment 
was tiled on behalf of the petitioners on 
the5sh June. In it, it was alleged that after 
the arguments were over, the petitioner 
No, 1, who was in charge of tbe case on 
behalf of the plaintiff-;, had left Ranchi for 
hia village in order fco maka preparation for 
the Christmas festival in his charge, and 
he oarne bank to Rinohi in the first week 
of January and learn*, that the appeal was 
disposed of in terras of tbe compromise 
referred to above. Ifc was alleged in the 
petition that tbe compromise pnMbion waa 
filed without his knowledge and without in- 
structions to his Pleader anfl tbat it was 
prejudicial to the plain biff*' interest. 

The compromise petition was signed by 
the petitioners themselves, and counter- 
signed by their Counsel Mr. Roy. On the 
9oh of June 1923 the Court rejected the 
application for review holding: (1) that it 
was out of time and <2) thus it; was not in 
proper form. As to tha latter ground, the 
learned Subordinate Ju^ge observed, that 
Mr. Roy being Counsel (Advocate) could 
not move the petition unle*** he was 
instructed by a Plainer and after the latter 
had signed it, and tbat if Mr. Roy wanted 
to present the petition and thereby act as a 
pleader, he should have filed a Vakalatnama. 
In support of this view tha learned 
Subordinate Judge has cited the case of 
Mr. B. N. Misra, an Advooate of this Court, 
who practises in Oubtaok. I have looked into 
tbe file of the oaf e. Mr. Miara applied for 
refund of sqme money on bebalf of his olicmt 



74 Patnm 



LAUBBNTIUS BKKA 0. DUKHI KOEBI 



and filed a petition for that purpose under 
hie own signature, without filing a Vakalat- 
oama. The learned Chief Justice 
(Sir Edward Ohamier) observed that if 
Mr. Miera wanted to perform the functions 
of a Pleader be trust file a Vakalatnama. 
This view bas been maintained in this 
Court in several oases, and thus a practice 
has been established of not allowing refund 
of money to an Advocate unless be is 
especially authorised and files a Vakalat- 
nama. This would be so under the 
provisions of the Stamp Law which 
especially require that a refund of money 
can only he made to a person holding a 
power of attorney, duly stamped, from the 
person on whose behalf the withdrawal 
is sought : [Article 48 (0) Schedule I of the 
Stamp Aotj. But the Counsel in the pre- 
sent case did not want any refund of 
money on behalf of his client ; he only 
applied for review of judgment. Tho 
petition for review in the prepenfc case 
was duly signed by all the petitioners, 
and it was moved by Counsel Mr. Eoy, 
who appeared for the petitioners who 
were also present in Court at the time. 
The rules as to the presentation of an 
application are to he found in Chapter III, 
page 13 of the H gh Court Rules, and in 
Chapter I, Pait I, paj:e 5 of the General 
Rules and Circular Orders for the Sub- 
ordinate Couitb. Rule 4, clauses (iii) and 
(iv) of Chapter III of the High Court 
Rules, says that a petition shall be signed 
and dated either by the petitioner or 
declarant or his pleader and presented 
either by the petitioner or declarant or 
his recognized agent or bis pleader or 
some person apponted in writing in 
each case by Buch pleader to present the 
same. The Note to that rules says : 

" Hero and tLrrji&brut tbepe ruUe nnlepA there 
is anjtbn g rtpujajHf.t m ib FUtject or context 
'pleader' mtanb 'Bovccnte, vakil or attorney,' 

Therefore a petition must be signed 
and presented either by the petitioner 
himself or an advocate, vakil or attorney 
of this Court, In the present case the 
petition was signed by the petitioners 
themselves. They were present in Court, abd 
it was signed and presented by Mr. Roy, 
Advocate, on their behalf. Therefore 
if the petition were filed in this Court it 
would have been in order, It is, however, 
contended by Mr. Shambbu Saran that, as 
it was presented before the learned Subor- 
dinate Judge, the Advocate in question 



could nob present it. Rule 2, clause (3) 
Chapter I of the General Rules and Circular 
Orders, however, states that a petition 
to be presented in the lower Courts may be 
signed by the person presenting it, and 
rule 3 says that if the person presenting it 
is not a pleader or Mukhtar he shall, if so 
required by the Court, be identified* 
Therefore, a petition in the Subordinate 
Courts may be signed and presented by a 
party or by his pleader " Pleader" has 
been defined in the Code of Civil Pro- 
cedure, section 2, clause '15 to mean any 
person entitled to appear and plead for 
another in Court and to include an 
advocate, vakil and attorney of a High 
Court. This rule refers only to the 
functions of appearing and pleading, and it 
is said that it does not include acting. 

Rule I of Order III of the Civil Proce- 
dure Code says : 

" Any appearance, application or not in or to any 
Court, required or aufehoried by Uw to be made 
or done by a party in fluoh Court, may, except 
where otherwise expressly proved by any law 
for the time being in feme, be made or done by 
tbe party in person, or by bit* recognised agent, 
or by a pleader duly appoin ed to act on bis 
behalf," 

Rale 4, clause (1) of that Order says : 

" Tbe appointment of a pleader to make or do 
any appearance, application or ant for any 
person eball be in writing, and aball be signed 
by euob person or by his recognised agent or by 
pome other person duly autbo.is^d by power of 
attorney to act in this behalf." 

Clause O) of rule 4 dispenses with the 
appointment in writing in the case of an 
advocate of any High Court, and an advo- 
cate is not required to present acy docu- 
ment empowering him to act. 

Therefore, an advocate, unlike a pleader, 
can ho verbally appointed to act on behalf 
of bis client, and when so appointed, under 
rule 1 of Order III be can appear, plead 
and act, Hence Mr. Roy need nob have 
filed any Vakalatnama, an big authority to 
present tbe petition of revision on behalf 
of tbe petitioners. So far as the law and 
tbe rules are concerned, there is nothing 
to prevent an advocate, either in the High 
Court or in the subordinate /Courts, to 
preeent an application on behalf of his 
client without any. power of appointment 
or Vakalatnama given to him in writing. 
There is nothing in the Legal Practitioners' 
Act also afeainet this view. 

Section 7 of the Letters Patent of thi* 
Court conferred upon the Court power 



1986 



LAURBNTIU8 EKKA V. DUKHI KOBBI 



Patna 76 



M to approve, admit and enrol such and eo many 
Advocates, Vakils and Attorneys as to the eaid 
High Court may Been) meet ; and such Advocates 
Vakils and Attorneys shall be and are hereby 
authorized to appear for the suitors of the said 
High Court, aod to plead or to act or to plead an 
act, foe the said suitors, according as the eaid 
High Court may by its rules and directions deter- 
mine, and subject to euoh rulee and directions, " 

In Section 8 of the Letters Patent; it is 
further declared that this Court 

11 shall have power to make rules from time t 
time for the qunl fioaticn *nd admission of prope* 
persons to be advocates, Vakils and Attorney s-at- 
Law of the said Htgn Court, and shall be empowered 
to remove or to suspend from practice, on reason- 
able OftUPe, the paid Advocate*, Vak)le or Attor- 
neye-at-Law, and no ptrson whatsoever but such 
Advocates. Vukils or Attorneys shall be allowed 
to appear, plead or act on his own behalf or on 
behalf of a co-euitor. 

Section 119 of the Civil Procedure Code 
enacts that 

"Nothing in this Code shall be deemed to 
authorize any perpou on behalf of another to 
address the court, m the exercise of it" original 
Civil jurisdiction, or to examine witnepeee, except 
where the Court ebull have in the exercise of 
the power ooukrred by its charter authorized 
him eo to do, or to interfere with the power of 
tbeHigh Court to muke rules concerning advo- 
catco, VakilB &nd attorneys", 

No rule has been framed in this Court 
prohibiting an Advocate from presenting 
an application or acting on behalf of his 
client. 

Under section 4 of the Legal Practi- 
tioners Act (Ac; XVIII of 1879) 

"Every person tow or hereafter entered as an 
advocate or Yak l rn tbo roll of nry High Court 
Under the Lettrrn Patent constituting euch Court 
shall be entitled to practise in all the Courts 
aobordicate to ibe Court on the roll of which 
be is entered " etc. 

Thus, if an Advocate on the roll of this 
High Court is entitled to sign and present 
an application and to act on behalf of bis 
client in tbe'Higb Court itself, by section 4 
of the Letters Patent referred to above he 
will be entitled to \ raotise in all the Courts 
subordinate to this Court. The word "Prac- 
tise" in the section has been advisedly used, 
and unless prohibited by any special rule 
right to appear, Head an act. 

Mr. Shembhu Saran has referred us to 
the case of Ram Taiuck Barrtk v. Strikes- 
suree Dosste (1). 

That case, EO doubt, supports his con* 
tent ion, but that case relates to the prac- 
tice in the Calcutta High Court under the 
rules framed by that Court prohibiting 

U) (1870) 18 W, 



Advocates of the Court from acting on 
behalf of their clients either on the 
Original or on the Appellate Side and all the 
arguments advanced by Mr. Smbhu Saran 
were considered and fully met by a Full 
Bench of the Allahabad High Court in the 
case of Bhahtawar Singh v. Sant Lai. (2) 
Their Lordships in that case observed 
"It does not appear to us necessary to enter 
upon a discussion of tho ptaotioe that prevails and 
regulates the profession*! status and proceeding! 
of counsel in England, as it seems to us to be 
altogether beside the question we have to deter- 
mine, namely whether enrolled advocates of 
this Court are, P Hucb prohibited fr< m doing all 
Ruoh acts as admittedly may be done by the 
Vakils", 

Accordingly their Lordship* held that 
under the Letters Patent of the Allahabad 
High Court and its rules an Advocate can 
appear, plead and act. 

Now the Letters Patent of this Court 
and the rules framed by UB are on similar 
lines as those of the Allahabad High Oourb. 
I am, therefore, inclined to adopt the view 
taken by the Full Bench of that Court, 
and to hold that the learned Subordinate 
Judge was wrong in his view that the 
petition of review presented to him by 
Mr. Boy, Advocate, on behalf of the 
petitioners was not properly presented, 

The first ground upon which the learned 
Subordinate Judge rejected the application 
of the petitioners, however seems to be 
substantial The petition was filed much 
out of time. The appeal was disposed of 
on the 23rd December ]922, and tho 
petitioner No. 1 canoe to know of it in the 
first week of January 1923 when he came 
to Eanohi to inquire about the case. The 
review petition should have been filed 
about the 23id of March 1923. It was 
however filed on the 5th of June 1923, 
This enormous delay has not been explained 
in the petition for review presented to the 
subordinate Judge. 

It is a well recognized principle that a 
petition filed out of time must show on the 
face of it the reason for delay, and there 
must further be an express prayer for 
condonation of the delay under Section 5 
of the Limitation Act. On the face of ii 
the petition was time barred, and the 
Court below was right in holding that it 
was not entertainable. 

Again, the petition does not impute 
improper conduct on the part) of the 

(9) (1887)9 All. 617-1887 A.W.N, 168 (I,B.) 



7(5 PWtna MT. 8HBO DANI KUBR V. BAMJI UPADHYA (Sen, J.) 



1986 



pleader who filed the compromise petition, 
and unless that wa done the action taken 
by the pleader on behalf of the petitioners 
could not be challenged, for under the 
Vakalafcnama the pleader had full power 
to compromise the case, vide Sadhu 
Saran Rai< Anant Rai. (3) The recent 
decision of their Lordships of fche Judicial 
Committee in the case of Sourtndra Nath 
Mittra v Herambd Nath-Bandopadhya t 
[AIR. 19M P. 0. .95] may be use- 
fully cited though the facts of the case 
are not very similar to those of the present! 
one. On principle, there does not seem 
to be any reason for interfering with a 
compromise consented to by the pleader 
duly authorized in this behalf, unless 
fraud or collusion is imputed to the plead- 
er. No suoh collusion or fraud has been 
. pleaded in the petition, No doubt, ignor- 
ance of the compromise, want? of instruc- 
tions to the pleader, and possibly fraud 
practised by the opposite party have been 
vaguely stated in the petition, These are, 
however, not sufficient to affect the com- 
promise filed in the present caste. Again 
the petitioner No. 1 says that he was look- 
ing after the case and went away on the 
23rd December 1922 to make arrange- 
ments for the Christmas festivities, but 
there were about ten other petitioners and 
there is no reason why the petitioners other 
than petitioner No. 1 oould not remain in 
Banchi to look after the case. 

For all these reasons I dismiss the 
applications; hearing fee two gold mohurs 
for both the applications. 

Application dismissed. 

(3) A T,R 19J3 Patna483, 



A.I.K. 1926 Patna 76. 

AUAMI AND SEN, Jj, 
Mt. Sheo Dani Kuer Plaintiff-Appell- 



ant 



v. 



Ramji Upadhya and others Defendants- 
Beapondents, 

Appeal No. 1385 of 1922, decided on 
24th June 1925, from the Appellate Decree 
of the Sub Judge, Saran, dated 26fah 
August 1922, 

(a) Words" Malik " in a will does not nacess- 
arily confer absolute estitt, 

The use of the word malik in a will does not 
OoM*rily imply that (be estate oouUtrad i *n 
abiolute aUtt, Tfeo ward maiifc ia not A Item of 



art, it does not necessarily define the quality of 
entate taken by the donee, A.I.R. 1922 P, C. 193 
Appl. [P. 77, Ool. 1.] 

(b) Will Construction D we* dea:ribed as 
Malik Mokimit and pirmi'tAd tn morigaq* the 
property m case of necessity -Will co \fert an 
estate of a Hindu worn in ani nit abwlule ss'ate. 

la a will where it was Btafcefl that at times of 
real necessity the dinee would be at libarty to 
mortgage the properties or otherwise deal with the 
same and out of the income and produaa of the 
properties to find meas (or her livelihood and 
there iff not a word in the will to tbow that the 
testator ever contemplated that the corpus of the 
property would be alienated by the donee in any 
way, and the donee was described aa malik 
mskamit. [P. 77, Col. 1.] 

Held, that what was really intended to b* con- 
ferred upon the donee wan the estate of a Hindu 
womin subject to alienation only in the event of 
legal necessity, [P, 77, Col. 2,] 

Haresioar Prasad Singh for Bhagwan 
Prasad for Appellant. 

Harnarain Prasad for Respondents. 

Sen, J. : There ia only one point in 
this appeal and that is whether upon a 
proper ooostruofcion of the last) Will of one 
Sheogopal Upadhya fcha property in dispute 
passed to bhe plaintiff's mother, Kishun 
Kuor absolutely or only for life. 

It appear? that Sheogopul had two sons 
both of whom predaoeased him. Sheogopal 
died leaving one Baoha Kuer, the widow of 
his son Anmaul Upadhaya and Kishun 
Kuer the widow of his aon Rataa Upad- 
haya. In hia Will, Sheogopal provided that 
the property in question should bo enjoyed 
by Baoha Kuer so long asahe might live, and 
that Baoha Kuer should be able to maintain 
herself out of the property, but that she 
would have no power or right to make any 
sort of transfer of the same ; and on her 
death the property would coma to the 
possession of Mt. Kishun Kuer. 

As regards the oharaoter o'f the enjoy- 
ment of Mt. Kishun Kuer provided for 
in the Will, there is a great daal of 
dispute between the parties. The apnellanb 
before us contends that there are words of 
disposition whioh would clearly amount) to 
conferring an absolute estate upon Kishun 
Kuer, whereas the respondenf contends 
that there are certain terms in the Will 
whioh would olearly^show that th# intention 
of tha testator was not to confer an absolute 
estate bat only the interest of a limited 
owner. A* great deal of stress is laid upon 
the use of the words "maltk mokamit. ' The 
learned Vakil (or tha appellant contends that 



1926 



NATHAN PR AS AD SHAH V. KALI PR AS AD SHAH 



Pafna TT 



the very use of the word rnalik shows fcbafc 
tho estate that was purported to be granted 
to Kishun Kuer was an absolute estate and 
that once that absolute estate was conferred 
upon Kisbun Kuer then the restrictions 
laid down in tbe iater portions of the Will 
would be of no avail. Various rulings are 
cited in support of this proposition, but the 
matter is now beyond all douhttbat theuse 
of the word mahk does not necessarily im- 
ply that the estate conferred is an absolute 
estate, Aa observed by their Lordships 
of the Judicial Committee in the case of 
Bkaidas Shivdas v. Bat Gulab (l) the word 
mahk is not a term of art, it does not 
necessarily define tbe quality of estate 
taken, but in the context of tbe Will before 
their Lordahipa in that case.their Lordships 
thought that the estate conferred was an 
absolute estate, Therefore, the real ques- 
tion before us is as to whether, reading the 
context, the word mahk mokarmt in tha 
present case indicates that an absolute 
estate was intended to be given to Kishun 
Kuer. I think it is clear that the testator 
did not intend to give an absolute estate to 
Kishun Kuer for he observes that " it shall 
also be within the power of the said Kishun 
Kuer that at times of real necessity she will 
meet the same by mortgaging and giving in 
zurpeshgi portions of the lands ; further she 
will do what she likes and from the income 
and produce of the abave she will afford 
her livelihood, perform pilgrimages have 
Khata Puran etc. etc." 

Now, if the testator really intended to 

grant an absolute estate it would be 

entirely unnecessary for him to state that 

at times of real necessity the donee would 

be at liberty to mortgage the properties or 

otherwise deal with the same and out of 

the income and produce of the properties to 

find means for her livelihood, There is not 

a word in the Will to show that the testator 

ever contemplated that the corpus of the 

property would be alienated by Kisbun 

Kuer in any way. 

The learned Vakil for the appellant 
points out that tbe words "she may do what 
she likes" indicate that tho testator intend- 
ed to give jjer absolute powers of disposal 
over the property. That) does not appear 
to me to be a correct construction of the 
words, for they musfa again be taken to- 
gether with tbe context and judging from 
the manner in which those expressions 



have been used, it seems to me that what 
the testator intended to say was that she 
would be at liberty to do what she chose 
with tbe income and produce of the pro- 
perty. At any rate, it does not appear 
that those words would confer upon the 
devisee tbe power to deal with the corpus. 
In view of the fact that no absolute estate 
was conferred upon Kishun Kuer, the ques- 
tion does not rise as to whether there were 
in the later portions of the Will expressions 
repugnant to an absolute estate which 
would, therefore, have to be declared to be 
invalid and of no effect. Taking tbe instru- 
ment in its entirety, I am of opinion that 
what was really intended to be conferred 
upon Kishun Kuer was the estate of a 
Hindu woman subject to alienations, only 
in the event of legal necessity. 

In the circumstances the appeal must be 
dismissed with costs. 

Adami, J.~ I agree. 

Appeal dismissed. 



(I) A.I.R, 1999 P.O. 193, 



*A,I.R, 1926 Patna 77. 

ADAMI AND SEN, J,T. 

Nathan Prasad Shah Defendant- 
Appellant 

v. 

Kali Prasad Shah Plain tiff- Respon- 
dent. 

Appeal No. 1220 of 1922, decided on 
24th June 1925, from the Appellate Decree 
of the District Judge, Santhal Parganas, 
dated 14th July 1922. 

(a) Lease Construction I jar a deed is a mort- 
gage and haq ajin is not rentInterest on haq ajiri 
cannot be claimed unless there is a stipulation in 
the deed, 

Under ibe terms of tbe deed it was agreed that 
the Ijaradar should remain in possession of tbe 
Ijara property, and out of the fixed annual rent, he 
should pa; Government revenue aud rcad-ctes into 
tbe Government Treasury every year, should 
deduct and appropriate to himself certain sum 
every year in lieu of interest on tbe fiarpeshgi 
money and bhould pay the remaining sum every 
year as haq ajiri to tbe owner, 

H0ld, that tbe haq ajiri payment was not rent, 
thai tbe deed waa a usufructuary mortgage and 
that the person in possession held as mortgagee 
and not as a tenant. The haq ajiri wae due from 
him as mortgagee under an arrangement with the 
mortgagor and was not due from him as tenant, 
and further that. the hag ajiri not being rtnt, no 



78 Patna 



NATHAN PBA8AD SHAH V. KALI PRASAB SHAH 



1996 



interest WAS payable on it, as there was DO etipula- 
lion in the deel for payment of interest thereon, 
1 P.L.W, 795 Rtl, [P. 79, Col. 1.1 

(b) Cic, Pro. C<xis 0. <9, r . 6 ^EguitaSle sst 
off can be claimed though, time-barred. 

A time-barred debt truy be oUiraed by w-ty ot 
equitable set off 1J O.W.N. 60 and 19 C.W.N. 
1183 Poll. [P. 79, Ool. Q,] 

(o) Lflise r-i-pe<jb$t D^mqe to ijara pro- 
par^ ts <o the corpus and ctmoimta'iw for excwi- 
fan in iw/i property cannot be oliwd by ija^aiar 
from third person but can be claims! from ths 
owner. 

Bxoavition of ijara property is a damage to the 
corpus of the property aud the ijaradar is not 
allowed to Uke away any portion o( the soil, nor 
oan he olaim ootnpeis'Uion from a third person 
foe euoh eiv<%tion but oan olaim from the 
owner. [P, 79, Ool. 2.] 

D. C. Verma and Bam Prasad for 
Appellant), 

O. S Prasad and N. C. Sinhator Res- 
pondent). 

Judgment : In 1907 the plaintiff who 

is proprietor of village kixbfi Syedpur 

in tha Stnbhal Pargfvnaa, executed and 

registered an i; im deel granting certain 

proprietary rights in the village in favour 

of the defendant for a term of seven 

years in consideration of an advance of 

" Ri. 26,000. Under the terra* of the deed 

it) waa agreed that the ijaradar '* should 

remain in possession of the ijara property, 

and out of R-i. 1,630 8 the fixed annual 

rent, ho should pay K*. 41156 aa 

Government revenue and road-oega into 

the Government Treasury every year, 

should deduct and appropriate to himself 

every year, Ra. 975 in lieu of interest on 

the zarpeshgi money and flhouH pay the 

remaining um of Ri. 294 3-0 every year 

as haq ajiri" to the plaintiff. 

The defendant failed to pay the haq 
ajiri for several years in succession and, 
therefore, the plaintiff instituted the suit 
out of whioh this second appeal arises, 
claiming the haq ajiri for the years 1320 to 
J.325 Fdslis both inclusive together with 
interest at the rate of 12 per cent per 
annum. After the defendant had filed his 
Britten statement the plaintiff amended 
the plaint, withdrawing the claim in 
reapeot to the year 1320 Fasti. 

The defendant did not) deny that the 
haq cijiri was due for the years 1321 to 
1325 Faslis but he contested the, olaim for 



interest and also sought to set-off against the 
demand in respect of haq ajiri certain pay- 
ments alleged to have been made by him 
to the plaintiff. Of these it is only neces- 
sary to mention two, namely, (1) a pay- 
ment of R*. 150 realized f-om one Rai 
Bahadur Baikuntha Nath San, who had 
excavated a tank in the village without) 
permission and (2) a sum of R*. 240-5-6 
due as rent! for thb six years in respect of 
lands in the village held by the plaintiff as 
raiyat under the ijaradar and Rs. 120 due 
as interest on the said arrear rents. The 
other items sought to be set-off have been 
disallowed by the lower Courts and no 
appeal is pressed before us in regard to 
them, This defendant alsos^t up the bar 
of limitation against the claim for haq 
ajiri for 1320 to 1323, and urged that 
Mt, Sita Sahuan should have been 
joined aa plaintiff. 

Tbe Subordinate Judge found that the 
plaintiff was entitled to the haq ajiri 
claimed for the years 1321 to 1325 inclusive 
and that, though the ijara deed contained ' 
no stipulation for the payment of interest 
thereon, the haq ajiri being rent, the usual 
rate of 12 per cent, ought to be paid. With 
regard to set-off, the Subordinate Judge 
disallowed all the items except that rela- 
ting to the rent of the plaintiff's raiyati 
holding, but even that olaim w*s found 
excessive, since the rent for 1320, 1321 and 
1322 was not recoverable, the olaim being 
barred by limitation. A sum of Ra. 117 
was allowed to be set-off as rent, oess and 
interest. 

On appeal the learned District Judge 
held that the haq ajiri was rent and aa such, 
according to the custom in the Santhal 
Parganas, interest was payable on arrears 
at the rate of 12 per cent. He upheld the 
decision of the Subordinate Ju^ge that the 
proprietor and nod the ij'iradir waa enti- 
tled to the IU 150 paid by Rii Bahadur 
Baikuntha Natb San, and rejected the 
claims to set-off other than that allowed 
by the Trial Court. He thus dismissed 
the appeal. 

Tbe only points pressed in appeal before 
us are (1) that haq ajiri is nof rent and, 
there being no stipulation for interest on 
jit, the Courts nelowwere wrong ib allowing 
interest ; (2> that, though the defendant 
would not be able to seek bia remedy by 
suit in respect of the arrears of rent for 
1320 to 1323 that remedy being barred by 
limitation, the debt still subsisted and he 



NATHAN PBASAD SHAH V. KALI PRA8AD SHAH 



Pfttna 79 



<was entitled to have the arrears of all six 
years set off againab the plaintiff's claim 
and (3 1 bb*b bhe defendanb, as ijaradar with 
full proprieiarv ngaba graob^i bv &ba ijara 
lease, was entitle! to tha R*. 150 paid as 
compensation for bha wrongful excavabion 
of a tank. 

At first sight, ainoe the ijara speaks 
of the haq ajiri as being one of the 
component; uarcs of the R*. 1,630 8 which 
is described as the fix ad aantnl rent, 
there would ha an inclination to decide 
that the lower G)uros ware oorreab in 
finding that interest was payable on it as 
rent. It; is argued that zirpeshyi lei.se is 
not a mare oonoraob for oulGivatiion bub it 
also provides security for money advanced, 
and in tha prasenb case it was arranged 
that bha aoproprUbion of R<*. 975 every year 
by the ijirfidir furnished bhe security for 
the advaaoa, while the Ra. 294-3 took the 
form of renb for bha right bo oulbivaba or to 
collect rent from bhe raiynts. The ques- 
tion, however, whether in such a oasa as 
this, hiq njiri is ranb ban b^en daoidad by 
this Oourb in tha o*sa of Birhvnieo Nzrain 
Singh v. Rim mini Praiad Singh (l). 
That case was similar bo bha present} 
one; there, in consideration of R*. 12,000 
oerbain zemindari righbs ware made over 
to a parson wno maia tha advance at what 
was dasnribad w a fixai anaual rental of 
Rs, 3034. Oib of this R*. 8034 bhe 
person who made the advance was to deduct 
Bs. 620 on aooount of interest on the 
zarpeshgi and wag to p%v R^. 83 4 annually 
to tha person who received tbe advance, 
Obapm%n an! A -kingon, JJ. held that 
this hiq ajiri uayraenb* of Ra, 83 4 was 
not rent, bnat bhe dead wvs a usufruc- 
tuary mortgage and that bhe person in 
possession bai i as mortgagee and not as 
tenant ; bhe hiq ajiri was due from him 
as mortgagee under an arrangement 
with the mirbgagor and was nob due 
from him a* tenant. Wa see no good 
reason to differ from bha above decision and 
following it, must decile that, the hiq njiri 
not being rant, no interest was payable on 
it, as there was no stipulation in bhe deed 
for pavmem> of interest bhereon. 

As regards tha se^off of the arrears of 
rent pavabfe by the plambiff bo bhe defend- 
ant, the learnad Subordinate Judge was 
clearly mi*bikm in holding bh.it the set 
off of the rent of the years 1920 to 1922, 



inclusive, was barred by limitation. The 
case of Sheo Swan Singh v. Mahabir (2) 
is an authoriby for holding bhab in a suit 
like bhe present one bhe ranb of lands held 
by tha mortgagor and forming part of the 
mortgaged property can be sea-off and that 
such rants may be sab-off, even though 
they mav ba barred by limitation, Gaja- 
dha,r Mahton v. R ighubir Oope (3) and 
Ramdhtri Singh v. P.irminu'i i Singh (4) 
also decide that) a tima-barred debt) may 
ha claimed by way of equitable set-off, 
Tha dafendanb-appallanb musb be allowed 
bo sefj-off bhe reab of tha six years 1320 to 
1325 F.ishs ab bhe rate of R*. 29-8-0 a 
year, that is bo say R), 177 and road oess 
and interest ab bha rab3 of 12 par cent, per 
annum. 

Tha last point pressed before us is with 
regarJ bo tha sura of R*. 150. It appears 
thab Rai Bahadur Bukuntjba Nabh Sen 
wiohout permission excavated a bank in the 
village ; bobh bha pUinbiff and bhe defen- 
anb book prooae lings in Oourb against 
him, but tha mibter was settled by the 
payment of Rs t 150 which bhe plaintiff 
receive! Ib is contended that, afl the deed 
of ijara gave bo the defendant all the rights 
of bha proprietor during the oerm of the 
ijara, bhe defendant was entitled to get the 
money a? temporary proprietor, and, 
because bhe excavation of bhe tank deprived 
him of parb of bhe u^ufruob, he is entitled 
to compensation. If he was entitled to 
compensation on thi-? ground ha would have 
to seek ib from bhe plaintiff who mortgaged 
the properby to him and not from the 
abrangar wno trespassed. The ooobenbion 
cannot be supported, the damage was 
damage to the corpus of bhe property, and | 
the ijaradar wDuld nob be allowed to take 
away any portion of bhe soil. 

On tbe findings I have oome to the 
appeal must bo allowed in parb and the 
decree of bhe lower Oourb muab be modi- 
fied to this extant, thab the plaintiff- 
respondent will ba declared to be not 
entitled bo interest and tha sum of Rs. 705 
will be deducted from the amount decreed; 
also bha appellant will ba declared to be 
entitled to set off Rs. 177 as rent of the 
plaintiff's holding for the six years 1320 
to 1325, bobh included, with road-cess 
and interest at the rabe of 12 per cent. 



'!) (1918) 1 Pat. Ii W. 795-1918 P.H.0,0, 31* 



(3) (1905) 3* 0*1, 576-9 O.L.J. 79. 

(3) (1907) 190.W.N 60. 

(4) (1913) 19 O.W.N, 1183. 



80 Patna PRASANNA KUMAR BANERJI v. K, OHABAN MANDAL (Das, J.) 



per annum ; this sum of Rs, 177 and the 
roadoesB and interest will be further 
deducted from the sum decreed as payable 
to the plaintiff by the lower Courts, 

The parties will get costs proportionate 
to their success in all the Courts, 

Decree modified. 



A.I.B, 1026 Patna 80. 

DAS AND ADAMI, J,T. 

Prasanna Kumar Banerji and others 
Appellants 

v. 

Kalyan Oharan Mandal and another 
Respondents. 

Appeal No. 688 of 1922, decided on 20fch 
April, 1925, from Appellate Decree of the 
Sub-Judge, Purulia, dated 7th April, 
1922. 

MoghliT/ia word does not constitute 



rent. 

The teem " Moghli" is a word of doubtful mean- 
ing and ab the beat imports no more than that 
the rent ceased represents a proportion of the 
Government revenue. In no souse of the 
term does it constitute rent. (20 C.W.N. 1135, 
Rtf.) [P, 80, Col. 2 ] 

A. K. Hoy for Appellants. 

A. B. Uukerji and B. B< Mukherji for 
Bespondents. 

Das, J The only question in this appeal 
is whether the transaction of the 3rd 
Aghran 1285 B.S. was one of sale or one 
of lease. The document is described as a 
khas kobala ; and there is very little doubt 
to my mind that the parties regarded the 
transaction as one of sale. The considera- 
tion money was arrived at on a calculation 
of the annual profits of the lands conveyed. 
It was ascertained that the annual profit) 
was Rs, 7-13-0; and deducting therefrom 
Rs. 1-10 payable by the transferor as the 
moghli the net profit wad found to be 
Rs. 6-12-0. The transferor conveyed the 
land to the transferee for a considera- 
tion which was settled at 18 times the 
net annual profits of the lands, The 
critical passage in the document runs as 
follows: 

" I have myself got the following lands as 
bounded below, namely," and the bound* 
aries are given, " ID all three items of 



lands about 17 bighas in area, the annua 
profits of these lands amount to Re. 7-13-0 
only, out of which deducting Re. 1-1-0 
moghli, annual rent is Rs. 6- 12 only and 
receiving the sum of Rs, 121 8-0 only as 
18 times of the annual profit 1 sell the said 
lauds to you. From this day forth you 
become fully entitled to the said lands and 
are empowered to sell and make a gift of 
the same and paying yearly Re. 1 1 only 
moghli to me and 10 my heirs and legal 
representatives from 1286 B S. you become 
entitled from this day from generation to 
generation by cultivating the same yourself 
or by settlement of tenants and to that I or 
my heirs and representatives shall never 
make any objection." 

It is contended cm behalf of the appellants 
that the respondents were the holders of a 
subordinate interest since Re. 1-1-0 was 
payable by them as moghli to the appellants; 
but! ic is to be pointed out) that this moghli 
of Be. 1-1-0 was payable by the appellants 
who were the transferors to their superior 
landlord and did not constitute a profit in 
their hands when paid by the respondents 
to them. The term " moghli " is a word of 
doubtful meaning and at best imports 
no more than that the rent assessed repre- 
sented a proportion of the Government 
revenue. [Nawagarh Coal Co. Ltd. v. . 
Behai Lai Trigunait (!>.] There is very 
little doubt that the sum of Re. 1-1-0 repre- 
sented the proportion of the Government 
revenue assessed on the lands conveyed. ID 
no sense of the term does it constitute rent. 
That being so, there is nothing to show 
that the respondents where the holders of 
a subordinate interest in relation to the 
appellants. In my opinion they are the 
holders of co-ordinate interest. 

In my opinion the question was correctly 
decided by the learned Judge in the Court 
below and I must dismiss this appeal with 
costs. 

Adami, J.: I agree, 

Appeal dismissed. 

(I) (1917) 20 O.W.N, 1135-1 P.L.J, 275-81 
1,0. 450-2 P,L,W, 824, 



1926 BANJIT NARAIN SINGH v. RAMBAH VDUR SINGH (Buckmll, J.) Patna 81 



**A.I.R.1926Patna81 

ADAMI AND BCCKNILL, JJ 

Ranjit Sarain Smqh and otf^js Ap- 
pellants 

v 

Rambahadur Sinqh and otlien Kes- 
pondents 

Cnminal Appeal No 133 ot 19J1, De- 
cided on 10th Kovembei 19iT>, liom the 
decision of the Dist. J , Gaya, 1)'- 10th 
July 1925 

-Mr (a) Criminal P C , .S 47f-/i fc'n %/ ( f iiin / 
nju^tng to wt&e comfta'nt JLppilla'e Cuint allow - 
ii^g apitettl and itself mal\nnj a tamjdttint 



half of them knowing that thev were forged, arc 
matters which Are to b# contemplated as the sub- 
ject of thi prosecution following the complaint and 
ar: not the subject matter of the pioceeding to 
issue a complaint. (P 80 C. 2] 

s, .Sf N. Bow ami Jtf. K. Nand- 
lor Appellants 

(iovt. -lf/iwft/i-*-for Respon. 



An app A\ lies under S 47d-I5 of thi (1iimm.il 
P C to thp High Cum t from AH ipp>ll.ito ordtr 
of the District Judge miking <i complaint \vhich 
the hrst Court might himvlf h.i\e m,idt but, rt- 
f used to maki' ['j I,ali 5(> J)i<* ('* /i<' ft <? 1925 
Aft ti wed ] Upon A proper construe. turn of Ss 47(5, 
470-A and 476-15 t.ikuitf for the NIKO of illiisti.ition 
tin three .wending Courts ,is Muusif, District 
Judge a.id High Couit thine \\ould h .111 appeal 
from the District Judge to the High Court (A) 
where the Munsif has refused on application made 
Co him under S 470 to make <i complaint, \vhert 
there has b^en an appeal to the District Judge and 
where the District Judge disagreeing with the 
Munsif has made a. complaint (b) \vhere undtr 
S 470-A the Muusif has taken no action suo 
inotu and lias not been .isked to taivf an> action 
the District Judge has (a) on application to him 
made a compliant, (b) on application to him has 
refused to make a complaint. The same reason- 
ing would appl\ to anv other rhain of three Courts 
(contemplated l>\ S 17b) of isu ndmg jurisdiction 

[I 1 85, C 1, 2] 

<fc (b) Ctlnunal P C , N 470- MaK'niitoni/valnf 
s ducretionai if Jliyh Court dunild Ind'ijeie in 



The question whether a complaint should be 1 
made under S 470 Criminal P C is almost m\a- 
mbly a mattei of discretion, and the High Court 
m under those circumstances alua>s loath to inter- 
fere except in extraordmar) case s. A J. 11. 1924 
JJnm. 347 Rel. on 

Where the trial Court and first appellate Court 
conclude that certain documents are not g< nuine 
and the District Court makes a complaint for pro- 
secution it has sufficient ground to make a com- 
plaint and itfe order \\ould not be set aside b v the 
High Court. [P 85, C 2J 

(t) Criminal P C., fi. 476 Court Venn all ij talid* 
att'on on appl'cation bit jxirt'.c^. 

If it was always to be left soleh to the self-act- 
ing motion of the Courts concerned to institute a 
complaint, much of 8. 476 \\ould be surplusage , 
as it is frequeytlv onH upon application made to 
it that a Court either under S 476 or S 176-4 of 
the Criminal P. C. takes action. fP. 80, C. 2J 

(d) Criminal PC., S. 476-gM<sfirm as to forged 
na'urc of document Is to be decided in jprnwu/fona 
following complaint and not before making one. 

The questions, \\hethrrthe document*- declared 
by the Court trjing suit as not gtnume \vere 
forged or not, b\ or on behalt of the petitioners or 
whether thA* were used in any way b> or on bc- 

1926 P/ll & 12 



Bucknill, J This was a matter refer- 
red to a Bench b> ^Licpherson, )., on the 
Jnci Sejiteinber last , it had come before 
In in when sitting as vacation Judge as a 
proceeding which i>uij>oUed to he an 
iip)ieal from a decision ol the District 
Jwlpp ol (irt>a, dated Jul\ 10th last. The 
natiiio ol tlio nuittei ma\ bo thus sum- 
ma LI /cd 

The icspondents to the pi'occodint* now 
hetoio us brought in 1!) V 23, a inonov suit 
a^.iuist tho Jst petitionei I'oi a shaio in 
eeitain hhaoh pioduco icnt ol some 53 
l)Tt*has ot hakasht lands , rho 1st peti- 
fi onci (ap])olLint heie) ))lcaded paMiiont 
.ind in suppoit ol tins defence lolcned to 
certain receipts and papeis ot account 
winch weio ]>iodiiced on his behalt and 
which woic cither in pait 01 in \\bole 
exhibited in evidence b> tho I'ctitionois 
J and 3. 

The Munsil (2nd (Joint) ol Ga>a who 
tned tho KUI t gave judgment in tho ics- 
])ondents' favoui, for he \v as (to use his 
o\\n woids) "not satisfied that the signa- 
tmesonthe receipts and tho JSu)haotas 
\\ore the genuine signatincs ol those poi- 
sons" (whose siynaturos tboy weio allowed 
to be) tho decico was dated 21st July 



Tho 1st petitioner appealed, the appeal 
was heard on 5th .February lystfi and was 
dismissed by tho Additional Sessions 
Juditc and Subordinate Judge 3rd Court, 
(lava, vho, agreeing with tho Munsit that 
the loceipts and bujhaotas weie not genu- 
ine, dismissed the appeal. 

Almost immediately altoi this appeal 
had been dismissed, the respondents, on 
Ifith February 19&") applied under S 47G 
of the Ci P C to tho Munsif, lind . Court 
ot (ia"\a (\\ho was ho \\ever not tho same 
individual as that Munsif who had tned 
the suit in 19^4) requesting him to hear 
the paitics and to make a complaint un- 
dei the pro\r,ions of S 476, Cr. P. C., 
against the j>etitioners They suggested 
that the petitioners ought to be prosecu- 
ted under sections of the Indian Ponal 
Code such &s S. 467 (forgeiy of a receipt) 



82 Patna KANJIT NABAIN SINGH v. RAMBAHADUR SINGH (Buckntll, J.) 1926 



and S. 471 (using as genuine a forged 
document). This Munsif, however, after 
hearing the parties, refused on 23rd April 
1925) to make any complaint as requested. 
The Munsif seems to have thought that 
as there was no direct finding of forgery 
hy either the trial or appellate Courts 
and as neither of those Courts had thought 
fit to take any step proprio motit under 
the provisions of S. 476, he himself should 
not think it desirahle to take any action. 

From this decision the respondents, exer- 
cising fcheir right, under S. 476-B of the 
Cr. P.O. appealed to the District Judge of 
Gay a who on 10th July 1925 took a diffe- 
rent view to that expressed hy the Munsif; 
he considered (to use his own words) that 
"A good case for prosecution had heen 
made out and that the prosecution should 
he sanctioned." He added " I therefore 
institute a complaint against Eanjit Singh, 
Ajodhya Singh and Bagho Singh (the ap- 
pellants here) for their prosecution under 
Ss. -171 and 193 of tho Indian Penal Code 
or any othor section or sections that may 
apply and forward it to the District Ma- 
gistrate." This action was as a matter of 
procedure, quite properly taken in accor- 
dance with S. 470 B of the Criminal P. C. 
Prom this decision the appellants have 
purported to appeal to this Court. It was 
entered as Criminal Appeal No. 133 of 
1925. It was admitted as an appeal hy 
Jwala Prasad and Macpherson, JJ. on 
24th July 1925. It came, as I have al- 
ready said, before Macpherson, J. sitting 
as Vacation Judge ; the question was rai- 
sed before him hy tho Crown as to whe- 
ther in a caso such as this an appeal lies 
to this Court and as there appeared to he 
some doubt as to this point and some pos- 
sible conflict of decisions, the learned 
Judge referred tho matter to a Bench. 

It may at once be stated that applica- 
tions to this Court under S. 476 B of the 
Criminal P. C have 1 at times been madl 
both as appeals and in Revisionae 
jurisdiction ; and in other High 
Courts also. For example in this 
Court in Gajaram Marwari v. The King- 
Emperor (l) and Bhuki Sao and Ttamdhani 
Sao v. King Emperor (2) (which were 
heard together) the general features of the 
position were somewhat parallel to those 
displayed in the matter now under consi- 
deration : one Mahabir Sao applied to a 
Magistrate who had under the provisions of 

(1) "Criminal Appeal No722 of \925. 

(2) Criminal Appeal No. 87 of 1925. 



S. 203 Criminal P. 0. dismissed a complaint 
made by another individual asking that 
that complainant and two others should 
be ordered by the Magistrate to be pro- 
secuted by virtue of the provisions of S. 476 
of the Cr, P. C. The Magistrate refused 
to make a complaint. Mahabir thereupon 
appealed to the Sessions Judge who diffe- 
red from the Magistrate and himself made 
the complaint requested under S. 476-B. 
Criminal P. C. The 3 persons thus ordered 
tobe prosecuted thereupon appealed to this 
Courb ; no question was ever raised at any 
stage of the proceedings as to there being 
no right or possibility of an appeal. The 
cases were admitted, as appeals by Kul- 
want Sahay, J., and myself on 4th February 
19^5 and were heard as appeals on 16th 
April 1925 by Macpherson, J. and myself ; 
the appeal in the case of one appellant 
was allowed and in the case of the other 
two rejected. 

I need not refer, I think, to cases which 
have come up as applications in revision ; 
for it is common ground that such have 
occurred. 

In Criminal Appeal No. 115 of 1925 
Macpherson, J., apparently decided a case 
similar in general features to the present 
one as an appeal ; the Magistrate in that 
case had refused to make a complaint, On 
appeal under S. 476 B. The Sessions Judge 
differed from the Magistrate and himself 
made the complaint ; the person ordered 
to be prosecuted appealed to this Court ; 
the appeal came before Macpherson J sit- 
ting as Vacation Judge and the point that 
no appeal lay was specifically taken, Mac- 
pherson J. then expressed the opinion that 
sitting singly he ought to follow the ex- 
pression of opinion given by Mullick, J. in 
Fanjdar Eai v. King- Emperor (3) and hold 
that an appeal did lie ; but, whilst ex- 
pressing this view, he decided to reject 
the application on its merits whether it 
was rightly to be regarded as an appeal or 
as an application in evisional jurisdiction. 
And, in the present case, as has already 
been observed, the same learned Judge, at 
a later date, (i.e., on 2nd September 1925) 
the same point being more specifically per- 
haps raised by the Crown, referred 
the matter to a 'Bench. In the Lahore 
High Court in the case of Mohammad 
Idris v. The Crown & another (4) the ques- 
tion as to whether an appeal lies* from a 

(3) Criminal Rev. No. 5 of 19-J5 ~ ' 

(4) A. I. K. 1925 Lah. 922 



1926 EA.NJIT NARAIN SINGH v. EAMBAHADUR SINGH (Bucknill, J.) 



Patna S3 



decision under S. 476 B. Cr. P. C. has been 
discussed and decided by Martineau and 
Zafar Ali, J J. In that case their Lordships 
held that no appeal lies under S. 47-6B. 
9! the Cr. P. C. to the High Court from 
an appellate order of a District Judge 
making a complaint which the Sub-Judge 
might himself have made but refused to 
make. This was a reference to a- Bench 
made by Scott-Smith, J. who was doubtful 
as to whether an appeal lay under such 
circuui stances. 

This case, is of course, directly in point 
here ; but it has been suggested to us that 
the decision is not legally correct. The 
judgment is very short and was given on 
October 24th, 1924. It simply reads thus: 
" This question referred to us in this 
appeal and in Appeals Nos. 233 and 286 of 
1924 is whether an appeal lies to this 
Court from an appellate order of the 
District Judge making a complaint which 
the Subordinate Judge might himself have 
made under S. 476 of the Criminal Pro- 
cedure Code. S. 476-B. of the Code gives 
a right of appeal only when a Court has 
made or refuted to make a complaint 
under S. 476 or S, 476-A. and neither of 
those sections relates to a complaint made 
by a Court on appeal from an order of a 
Subordinate Court refusing to make a com- 
plaint. We, therefore; answer the question 
referred to us in the negative. The 
appeals will be laid before the referring 
Judge for disposal '' 

In the Calcutta High Court a case 
similar in features to the present one has 
been dealt with in Bevisional Jurisdiction 
and the decision of the Sessions Judge 
reversed (Kalisad lian Addya v. Nani Lai 
Hazra) (5), but the question of the possi- 
bility of an appeal did not there arise. 

It is, I think, necessary now here to 
explain the argument which has been well 
placed before us upon this question by the 
learned counsel who has appeared for the 
appellants. He draws a distinction in 
different sets of circumstances between 
the possibility of an appeal lying from a 
decision given by an appellate Court under 
the provisions of S. 476-B. He argues 
that then? may be different positions as a 
result of a proceeding under S. 476-B. in 
appeal. The first portion is when the 
original tribunal has made a complaint 
(i. e., ordered a prosecution un^er S. 476) 
the person ordered to be prosecuted has 
appealed under S. 476 B and the 

(5) A. I. B. 1925 Cal, 721. 



appellate Court has allowed the 
appeal. In such a case he admits that 
there is no further appeal ; though 
revision by the High Court' may 
be conceivable. This position has been 
the subject of a decision in the Bombay 
High Court in the case of a criminal 
appeal : Somabhai Valabhlhai v. Aditbhai 
Parshotam (6). In that case a Subordi- 
nate Judge had on the application of one 
Somabhar under S. 476 Cr. P. C, issued a 
a complaint and directed the prosecution 
of certain persons ; they appealed to a 
Sessions Judge who allowed the appeal. 
Somabhar appealed to the High Court. 
Macleod, C. J., and Shah, J.rlield that there 
was no appeal. In their judgment their 
Lordships state "We are clearly of opinion 
that no appeal lies under the provisions of 
the Code against an order made by the 
Court to which the Court making a com- 
plaint is subordinate," It will be observed 
that the point raised before us as disclosed 
by the 4th position (vide infra) was not 
before the Bombay Court nor decided by 
it. The 2nd position is when the original 
tribunal has refused to take action under 
S. 476 ; the applicant has appealed under 
S.476-B. the appellate Court has dismissed 
the appeal ; he thinka that in this case too 
there is no further appeal ; though 
again revision by the High Court is con- 
ceivable. The 3rd position is when the 
original tribunal has made a complaint ; 
the person ordered to be prosecuted lias 
appealed, the appellate Court has dis- 
missed the appeal ; he thinks that in this 
case too there is no further appeal ; though 
once more revision by the High Court s 
possible. The 4th and, of course, last 
possible position, is that existing in the 
present case, the original tribunal has 
refused to make a complaint ; the appli- 
cant has appealed and the appellate Courfc 
has itself made a complaint. It is argued 
that in such case the party ordered to be 
prosecuted has a right of appeal ; and 
revision also might be possible ; except 
that if an appeal lies revisional juris- 
diction would not, it is imagined, be exer- 
cised. 

This is the position upon which the 
Lahore High Court lias given the decision 
quoted above ; but it seems that a con- 
trary view has been expressed in this 
Court by Mullick, J., in Faujdar Bai v. 
King-Emperor (3). 

(6) A. I. , 192 Bom, 317 r 



81 Patna RANJIT NARAIN SINGH v. RAMBAHAEKJR SINGH (Bucknill, J.) 1926 



In that ca*e the circumstances were as 
follows : An application was made under 
8. 476 Criminal P. C. to a Sub-Deputy Col- 
lector to make a complaint against one 
Faujdar Rai directing his prosecution for 
the offences of using a forged document 
and giving false evidence. The Sub-Deputy 
Collector after enquiry, refused to take 
any action. The complainant appealed to 
the Collector under S. 476-B, Criminal P. 
C. The Collector disagreed with the Sub- 
Deputy Collector's view and himself made 
ti complaint. Faujdar Rai thereupon 
appealed to the Divisional Commissioner 
who held on 30th March 1925, that 
no appeal lay. From the Commissioner's 
decision Faujdar Rai applied to this Court 
in revision ; not against the Commis- 
sioner's decision that no appeal lay but 
against the Collector's complaint. The 
first point taken was that the High Court 
had no jurisdiction to interfere with the 
Collector's order, but Mullick, J., rejected 
this contention : his Lordship then dealt 
with the matter in revision and allowed 
Faujdar' $ application. But, so far as is 
here material, the most important matter 
in the judgment lies in the following 
observations ; the learned Judge writes : 
" There is a third point raised, namely, 
that the learned Commissioner was wrong 
in declining to hear the appeal preferred 
by the petitioner. I think the contention 
must be accepted. S. 476-B of the Criminal 
P. C. appears to contemplate that, if an ap- 
pellate Court sets aside the order of the 
Original Court, the party prejudicially 
affected has a right of appeal to the Court 
to which appeals from that appellate 
Court ordinarily lie. In this case there- 
fore the Commissioner had jurisdiction to 
hear the appeal from the order of the 
Collector and to set it aside if necessary 
and I am asked to direct that the criminal 
prosecution should not proceed till the 
Commissioner has disposed of the appeal. 
In my opinion it is not necessary to make 
any such order as I think I have juris- 
diction to interfere under Ss. 115, Criminal 
P. C., and 107 of the Government of India 
Act." 

If this view is correct the same reason- 
ing would apply in the present case and 
the person against whom the appellate 
Court (i. e., the District Judge) has under 
S. 476-B, made a complaint could appeal to 
the High Court. 

It is important in endeavouring to come 
to a correct decision upon this question to 



examine carefully the provisions of Ss. 
476, 476A and 476-B in order to ascertain 
what is their proper construction. I may 
here say that as a result of such investi- 
gation as I have been able to make I have 
not been able to ascertain that in the Re- 
port of the Joint Committee on the Bill 
to make in the Criminal Procedure Code 
the amendments now comprised in S. 476-B 
or in the debates when the Bill was in 
the Legislature the question now arising 
was in any way envisaged ; and indeed 
it was hardly likely that it should have 
been, in view of its somewhat involved 
nature. 

S. 476 contemplates that a Court may 
either of its own motion or on application 
make a complaint. 8. 476-A contemplates 
that an appellate Court may make a com- 
plaint if its subordinate Court has taken 
no action under S. 476 suo motu or has 
not rejected any application made to it to- 
do so. S. 476-B gives a right of appeal to* 
an appellate Court under certain circum- 
stances. 

(a) Where the appellate Court's sub- 
ordinate Court has refused on application 
made to it under S. 476 to make a coin- 
plaint ; 

(b) where an appellate Court has re- 
fused on application made to it under S. 
476-A to make a complaint ; 

(c) where the appellate Court's sub- 
ordinate Court has made a complaint 
either suo motu or on application, i.e., in- 
cluded in the words or against whom 
such a complaint has been made "; 

(d) where an appellate Court has itself 
made a complaint. 

In following out the effect of this it 
will be simplest to illustrate by reference 
to Munsif, District Judge and High Court 
as instances of original, appellate and 
superior appellate Courts. 

It would seem clear that in case 
(a) where a Munsif has refused an ap- 
plication made to him under S. 476 to 
make a complaint an appeal lies to the 
District Judge by the applicant, the posi- 
tion does not fall within 4T6-A but within 
476*B. At the appeal no complaint has yet 
been made ; the District Judge may take 
the same view as tjie Munsif and dismiss- 
the appeal. In such case there is no sort 
of prescribed procedure for an appeal to- 
the High Court. On the other hand the 
District Judge may disagree with the 
Munsif and himself make a complaint and 
the complaint then is amenable to the 



1926 



BAN JIT NARAIN SINGH Y. BAMBAHADI/R SINGH (Buckuill, J.) Patna 85 



provisions of S. 476 ; that is to say, it is, 
under S. 476-B, subject to appeal to the 
High Court ; for S. 476-B, reads : " Any 
person against whom a complaint under 
S. 476 has been made by any Court." 

In the case mentioned the District 
Judge is making the complaint under S. 
476, the District Judge's Court is subordi- 
nate to the High Court within the mean- 
ing of S. 195, sub-S. 3 of the Criminal P. C. 
and therefore the appeal lies to the 
High Court. As to (b) the Munsif has 
<done nothing and has been asked 
to do nothing. The District Judge 
has either suo motu or on application 
made a complaint. All this is under S. 
476-A. The complaint is amenable to tho 
provisions of S. 476 ; clearly the com- 
plaint can under the provisions of S. 
476-B be the subject of appeal to the High 
Court from the District Judge. For the 
only complaint is by the District Judge. 

As to (c) the Munsif has suo motu or 
on application made a complaint ; clearly 
there is an appeal to the District Judge 
under S. 476-B. The District Judge may 
uphold the Munsif's view ; but in dis- 
missing the appeal he (the District 
Judge) makes no complaint ; and it is 
only against the complaint that so far as 
*(c) is concerned a right of appeal is given. 
But the District Judge may direct the 
withdrawal of the complaint ; but even 
so the District Judge makes no complaint; 
and it will be once more observed that it 
is only when the District Judge makes the 
complaint that the provisions of S. 476 
apply to it. 

Lastly as to (d) : the Munsif has done 
nothing and has never been asked to do 
anything under S. 476, But the District 
Judge has made a complaint either suo 
motu or on application under S. 476-A ; 
to this complaint the provisions of S. 476 
4ire applicable ; and under S. 476-B such 
a complaint can be the subject of appeal ; 
'but to what Court ? Obviously only to the 
High Court because it is from the District 
.Judge. 

In my opinion, therefore, upon a proper 
construction of Ss. 476, 476-A and 476-B 
and still retaining the illustration of the 
three ascending Courts as Munsif, District 
Judge and High Court there would lie . 
an appeal from the District Judge to the 
High Court, (a) Where the I^unsif has 
refused on application made to him under 
S. 476 to make a complaint, where there 
has been an appeal to the District Judge 



and where the District Judge, disagreeing 
with the Munsif, has made a complaint, 
(b) where under S. 476-A (the Munsif 
has taken no action suo motu and has 
not been asked to take any action) the 
District Judge has (a) on application to 
him made a complaint, (b) on application 
to him has refused to make a complaint. 
I can see no possibility of an appeal 
lying under any other of the positions 
referred to. 

The same reasoning would of course 
apply to any other chain of three Courts 
(contemplated by S. 476) of ascending 
jurisdiction. Being therefore of opinion 
that in the present case an appeal does 
lie, one must therefore examine the cir- 
cumstances under which the District 
Judge was induced to make the com- 
plaint. 

I think it is desirable to remark, as is 
pointed out by Macleod, C. J., and Shah, 
J., in the case decided in the Bombay 
High Court, that the question whether 
a complaint should be made under S. 476, 
Criminal P. C., is almost invariably a mat- 
ter of discretion ; and the High Court is 
under those circumstances always loath 
to interfere except in extraordinary cases. 
It is necessary, therefore, to look first 
at the original judgment given by the 
Munsif in the suit which he decided in 
July 1924. The action was brought by 
the plaintiff for recovery of his share in 
the produce of certain bakasht lands in 
possession of the 1st petitioner. The only 
substantial defence which appears to 
have been put forward was that the de- 
fendant had in fact paid what was due ; 
there were other questions raised, one of 
which was that part of the lands were 
raiyati lands and part bakasht and that 
the plaintiff could not sue in one and the 
same suit for rent for both kinds of lands. 
This point is only of importance because 
in support of the plea of payment the 
defendant produced certain documents 
of account (bujhaotas) in respect of the 
alleged payment of what was due with 
regard to the bakasht lands and certain 
receipts in respect of the raiyati. lands. 
The Munsif undoubtedly held that these 
bujhaotas and receipts were not genuine. 
It would not be, I think, right for me to 
enter in detail upon the reasons why the 
Munsif came to this opinion (in case it 
might be thought that I was expressirg 
any view of my own as to the authenti- 
city of these documents), but I niay state 



86 Patna KANJIT NARAIN SINGH v. RAMBAHADUR SINGH (Bucknill, J.) 



that, apart from observing that, so far as 
he could judge from the caligraphy, he 
was not satisfied that the signatures pur- 
porting to have been made on behalf of 
the plaintiff were genuine, he gave several 
other grounds in support of that view. 
For in-itanc-) with regard to the bujhaotas 
he suggested that they showed a set off 
in the defendant 's favour, in respect of 
the alleged share of a third party, for the 
inclusion of which there appeared to be 
no sort of justification ; again, he thought 
that under the circumstances, which dis- 
closed litigation still existing between the 
parties with regard to the lands in ques- 
tion, it was highly improbable that clear 
receipts and bujhaotas would have been, 
as the defendant alleged, granted to him 
by the plaintiffs, or indeed that the de- 
fondant would under such circumstances 
have in fact paid what was alleged to 
have boon due to the plaintiffs. He con- 
cludes his summing up of the case in the 
following words : ' Considering all this 
I disbelieve the defendant's plea of pay- 
ment and hold the bujhaotas and 
receipt filed by him hot to be genuine." 
The defendant appealed and it does not 
appeir that the Mun^if was then asked or 
thought fit to take any action under the 
provisions of 8. 170 of the Criminal P. C. 
The appeal was decided by the Additional 
Sessions Judge and Subordinate Judge of 
the 3rd Court of Gaya on the 5th 
February. The appeal was dismissed. 
The learned Judge, who again points out 
that, in view of the disputes which 
were going on between the parties, it was 
highly unlikely that the plaintiffs would 
grint receipts which would have im- 
p'jr l'(d their position in the other liti- 
gation which was principally concerned 
with a partition suit and who further 
draws attention to certain intrinsic im- 
probabilities in connexion with the 
genuineness of the bujhaotas and re- 
ceipts, agreed with tho Munsif that 
neither tho receipts nor the bujhaotas 
were genuine. As I have mentioned be- 
fore, v.ery shortly after the appeal had 
been concluded, application was made by 
the plaintiffs to the Munsif of the Court 
before which the original suit had been 
tried, asking that action should be taken 
under the provisions of S. 476 Criminal 
P. C. The Munsif before whom this 
application came was not the same 
individual as the Munsif whq had tried 
Che case. He seems to have thought in 



his decision, given on the 23rd April last 
refusing to take action, that no prima 
facie case of forgery or the like had been 
made out. He observes that neither the 
trial nor appellate Court had specifically 
found that the documents were forged 
and comments upon the fact that neither 
of those Courts had apparently thought fit 
of their own motion to direct a prosecu- 
tion. I need not point out that such, 
reasoning is not exhaustive ; for, if it was 
always to be left solely to the self-acting 
motion of the Courts concerned to institute 
a complaint, much of S. 476 would be 
surplusage ; and indeed, it is well known 
that it is frequently only upon application 
made to it that a Court either under S. 
476 or 476-A of the Criminal P. C. takes 
action. The Munsif proceeds to state 
that although the Courts expressed the 
view that tho documents were not genuine 
it does not follow that they were forged ; 
it is again, to my mind, obvious that the 
questions whether the documents were 
forged or not by or on behalf of the 
petitioners, or whether they were used in 
any way by or on behalf of them (they 
the petitioners), knowing that they were 
forged, are matters which are to be 
contemplated as the subject of the prose- 
cution which has now eventually been 
ordered. The Munsif, however, remarks 
that the mere fact that neither the trial 
nor appellate Court took any action of 
their own motion under S. 476 Criminal 
P.C. proves that the matter was not consi- 
dered sufficiently serious to justify a. 
prosecution ; I have already pointed out 
that this is fallacious reasoning. The 
Munsif, lastly, observes that the fact that 
the plaintiffs asked the Court to issue a 
complaint shows malice and grudge ; but- 
it is hardly to he understood necessarily 
that such is the case ; or otherwise it 
would be difficult to envisage an instance 
where any private individual could suc- 
cessfully make an application under the 
provisions either of S. 476 or 476-A of 
Criminal P. C., I do not therefore, think 
that the reasoning upon which the Munsif 
bases his refusal to make a conn plaint can 
be regarded as sound. 

The applicants ^appealed tohe District 
Judge of Gaya, and on the 10th July last 
the learned Judge differed from the 
Munsif and instituted a complaint. He 
points out that both the trial and the 
appellate Courts had clearly found that 
the receipts and bujhaotas were not 



BAM AUTAR PANDE v. SHANKER DAYAL (Adami, J.) Patna 87 



1926 

genuine, and he observes that the c one iu 
sions at which those Courts had arrived 
appeared to him to be based upon some 
good grounds : he also refers to some of 
those grounds. To my mind it is extremely 
difficult to see how it is possible for this 
Court to, interfere with the decision to 
which the District Judge has come, and I 
may say, indeed, that had I been in the 
position of the Munsif before whom the 
application was made I have little doubt 
but that I should have adopted the view 
that a complaint ought to have been in- 
stituted. 

The learned counsel, who has appeared 
for the appellants here, has urged against 
the order of the District Judge instituting 
a complaint against his clients a variety 
of circumstances upon which he bases an 
argument that the reasons which were 
given by the trial and appellate Courts for 
thinking that the receipts and bujhaotas 
were nob genuine were mistaken. He 
points also to the fact that a second appeal 
against the appellate decree of the Sub- 
ordinate Judge preferred to this Court has 
been admitted. It is true that in their 
application before the Munsif, asking him 
to institute a complaint, reference is made 
to the fact that the Government Examiner 
of documents had reported upon them in 
their (the applicants') favour and it would 
seem that the opinion of the expert ex- 
aminer was before the Munsif when the 
application was made to him. The 
Munsif, however, does not pay much 
attention to this report as he rightly 
points out that the expert has not yet 
been cross-examined. The value of the 
expert's opinion, however, and the other 
matters which have been referred to by 
the learned counsel for the appellants 
here are matters which it seems to me 
can only properly be gone into during the 
course of the prosecution proceedings 
which have been directed. To my mind 
there was no undue delay in the appli- 
cation to the Munsif. It is impossible for 
this Court to hold that the District Judge 
of Gaya has wrongly or unreasonably 
exercised l|is discretion. Two Courts have, 
rightly or wrongly, held that the docu- 
ments in .question are, not genuine and, 
under those circumstances, if the District* 
Judge thinks that there is a case which 
ought to form the subject-matter of a 
prosecution it is not in my opinion an 
occasion upon which this Court should, 
unless extraordinary circumstances were 



visible which do not appear here, interfere 
with what has been done. 

Under those circumstances, in my view, 
the appeal should be dismissed. 

Adami, J. I agree. 

Appeal dismissed. 

if if A. I. R. 1926 Patna 87 

ADAMI AND SEN, JJ. 

Earn Autar Pande and others Appel- 
lants. 

v. 

Shanker Dayal and others Bespon- 
dents. 

Appeal No. 845 of 1922, Decided on 
23rd June 1925, against the appellate 
decree of the Dist.-J., Shahabad, D/- 30th 
June 192^. 

* * (*) Civil P. C., S. 11 Competent Court 
Suit dismissed but one ist>ue decided against defen- 
dant Defendant appealing Appellate Court 
wrongly holding appeal incompetent but deciding 
tlie Issue in defendant's favour Finding is res 
judicata. 

An usufructuary mortgagee brought a suit 
against mortgagor for possession. He applied for 
an amendment to add alternate p*ayer for re- 
covery of debt but his application was retused and 
his suit dismissed. Court held that consideration 
had poised. On appeal by defendant Court held 
that no consideration passed but the appeal was 
wrongly dismissed on the ground that defendant 
was successful^ in lower court and no appeal lay. 
Plaintiff brought a second suit fur money 
decree for the debt, llel d\ that the first suit 
operated as rejudicata. liaghunath Kurmi 
v. Deo Narain Ltai ($. A. H19 of H>16, Patna) 
Poll. [P. 89, C. 1J 

* (b) Civil P. C., O. 2, It. 2-~Cau*es of action 
dijjeictit but su^tantial evidence common to both 
Relief* atising from both sJiould be claimed in the 
same suit. 

In a suit by usufructuary mortgagee for posses- 
sion under the terms ot tiie mortgage, the relief 
under Transfer of Property Act. S. Gb (b) for money 
decree in the alternative should be prayed for ; 
otherwise it is barred by 0. 2, K. 2, Civil P. C. 

[P. H'J, C. 1] 

C. C. Das and D. N. Varmaioi 
Appellants. 

Parmeshwar Deyal for Respondents. 

Adami, J. The plaintiff in the case 
out of which this second appeal 
cornos to us took a mortgage from Basudev 
Kai and Shankar Deyal Rai in con- 
sideration of an advance of Rs. 950. He 
was to take possession of 3 high as of 
raiyati land and to enjoy the usufruct in 
lieu of interest ; no date was fixed for 
repayment, but the mortgagor was to be 
entitled to recover possession by payment 
of the amount advanced on the 30th Jeth 
in any year. The unsufructuary mort- 
gage bond*was executed on August llth, 



88 Patna 



RAM AUTAR PANDE v. SHANKER DAYAL (Adami, J.) 



1926 



1914. In 1919 a dispute arose regarding 
the possession of the land which resulted 
in proceedings under 8. 145 Criminal 
F. C. In those proceedings it was 
decided that the plaintiff mortgagee and 
his lessee were out of possession. There- 
upon the plaintiff instituted a suit for 
recovery of possession on the strength of 
his mortgage bond. His only prayer in 
the plaint was for recovery of possession. 
After the close of the case, however, he 
put in a petition that he might amend the 
plaint by an alternative prayer for 
recovery of the mortgage debt. The 
learned Munsif rejected this petition and 
thereafter dismissed the suit on the ground 
that the property mortgaged was joint 
family property and that the Defendant 
No. 3 had not joined in the mortgage and 
that the plaintiff had failed to prove any 
legal necessity. The Munsif held that the 
mortgage was genuine and consideration 
had passed. In his judgment the learned 
Munsif stated that a money decree could 
not be allowed as there had been no 
prayer for it ; he said that he left the 
point open and plaintiffs may seek their 
remedy, if so advised, against Defendants 
1 and 2 for the money actually advanced. 

Against this judgment and decree an 
appeal was filed by Defendants 1 and 2 
against the decision that the mortgage 
bond was genuine. There was a cross 
appeal by the plaintiff asking for a money 
decree. This cross appeal was dismissed 
by the learned Subordinate Judge because 
the cross appeal was not sufficiently 
stamped. As to the appeal, the learned 
Subordinate Judge held that no con- 
sideration had passed, but he proceeded 
to find that no api>eal lay because the 
defendants had been successful in the 
Court below and therefore there was 
nothing to appeal against. 

The present plaintiffs on the basis of 
the statement made by the Munsif, that 
they might seek their remedy for the 
money actually advanced, instituted the 
present suit on the 17th August 1921, 
praying for recovery of the debt under 
the bond of 1914. 

The learned Subordinate Judge dis- 
missed the suit first : on the ground that a 
money decree had been asked for in the 
previous suit and refused and that the 
provisions of S. 11 of the Civil Procedure 
Code barred the present suit; and secondly, 
on the ground that as the plaintiff had 
opportunity in the previous suit of 



asking for the relief and had not taken 
that opportunity, O. 2 B. 2, of the Civil 
Procedure Code precluded him from suing 
for the relief. 

On appeal the learned District Judge 
has upheld the finding of the Subordinate 
Judge. , 

Before us Mr. Das takes up the point 
that S. 11 of the Civil Procedure Code 
cannot operate because, though the Sub- 
ordinate Judge on appeal held that no 
consideration passed, that finding can 
have no strength as res judicata since the 
Subordinate Judge found that no appeal 
lay and dismissed the appeal. 

The second point taken by Mr. Das is 
that the lower Courts are mistaken in 
thinking that 0. 2, R. 2 will operate. His 
contention is that the cause of action in 
the previous suit and the cause of action in 
the present suit are wholly different. He 
says that in the previous suit the cause of 
action was the dispossession of the plain- 
tiffs and the prayer was only for recovery 
of possession, whereas in the present suit* 
the plaintiff is merely asking for the 
repayment of a debt incurred under the 
bond. He contends that it cannot be 
argued that in the previous suit the plain- 
tiff could have asked for a money decree 
on the basis of S. 68 clause (b) of the 
Transfer of Property Act, because it wan 
found in that suit that there was no 
mortgage, and in fact the Court in the 
previous suit, having come to that finding, 
could not have given relief under S. 68 
clause (b). 

1 will deal with the second contention 
of Mr. Das first. It is quite plain that 
when the plaintiff instituted his first suit 
claiming the bond to be a mortgage bond 
and asking for recovery of possession, it 
was open to him to claim for the repay- 
ment of the mortgage money under S. 68 
clause (b). That relief was open to him 
and he did not claim it. His prayer for 
an amendment of the plaint was rejected 
and the remark of the Munsif in his judg- 
ment can hardly be held to amount to the 
grant of leave to institute a suit for 
money. It is quite true that ^he Munsif 
having found that there was no valid 
mortgage would ' be unable to grant a 
decree under S. 68, clause (e). It is true 
too that the cause of action for recovery 
of the money as a debt due under the 
bond would be different from the cause of 
action in the mortgage suit asking for 



1926 



UMA JHA v. CHETU MANDER (Das, J.) 



recovery of possession, for the facts to be 
proved would not be similar in the two 
cases. In both, however, the bond would 
have to be relied on. The trouble to ray 
mind is, if Mr* Das* arguments are ac- 
cepted and it is held that the present suit 
is merely a suit for a debt due on the 
bond, limitation will come in for the bond 
was executed on the llth August 1914 
and the suit was not instituted till the 
17th August 1921 and the suit would be 
barred. There is no doubt in my mind 
that in the previous suit the plaintiff 
should have asked for the relief allowed 
by S. 68, clause (b) of the Transfer of 
Property Act- He certainly cannot ask 
for that relief now. 

With regard to S- 11 of the Code of 
Civil Procedure, the learned Subordinate 
Judge came to a direct finding on an issue 
between the parties that consideration 
did not pass in 1914. The reason given 
by the learned Subordinate Judge for 
dismissing the appeal was not altogether 
a good reason. It was necessary to decide 
the point whether consideration passed 
between the parties and the learned 
Munsif came to a decision on that point 
which was against the interest of the 
defendants. If no appeal had been brought 
the finding of the Munsif would have 
operated as res judicata against defen- 
dants, and therefore as decided by 
Mullick,J. in the case of Bac/hunath Kurmi 
Dwnarain Rai (l) the defendants had a 
right of appeal although the suit against 
them had been dismissed. I think, there- 
fore, that S. 11 of the Civil Procedure 
Code will operate and bar this second 
suit, it having been found that no con- 
sideration passed on the bond of 1 ( J14. 

I would, therefore, dismiss this appeal 
with costs. 

Sen, J. I agree. 

Appeal dismissed. 
(1) S. A. No. 1419 of 191G. 

* * A. I R. 1926 Patna 89 

DAS AND Boss, JJ. 
Uma Jhh Plaintiff Appellant. 

v. 

Ghetu Mandcr and others Defendants 
-Respondents. 

Appeal No. 66 of 1923, Decided on 4th 
November 1925, from the appellate 
decree of the Suh-J., Bhagalpur, D/. 25th 
October 1922, 



Patna 89 



(a) Registration Act, S. 775. 77 doe* 
no/ affect equitable jurlsdlctl&n of Courts to decree 
specific performawc of contracts to sell Specific 
Belief Act, S. 12. 

Though independently of S. 77 of the Registra- 
tion Act a suit to compel registration of a docu- 
ment does not lie, the Registration Act does not 
touch or affect the equitable jurisdiction possessed 
by the civil Courts to pass a decree for specific 
performance by the execution and registration of 
a fresh document whe"e circumstances exist enti- 
tling the plaintiff to such a decree : 9 Cal. 150 and 
12 C. L. J. 464, Applied. [P 89 C 2] 

if (b) Transfer of Pro^rty Act, S. 54 Unre- 
gistered deed Is admissible in a suit for specific 
performance Registration Act, 8, 49. 

Although a kabala, which has not been register- 
ed is inoperative as a kabala yet it is admissible in 
evidence in a suit to enforce specific performance 
of the contract which must be deemed to have 
preceded the execution of the kabala. [P 90 C 1] 

N. C. Sinha. and B. B. Gliose for Ap- 
pellant. 

S. N. Sail ay to? Respondents. 

Das, J. The question for our decision 
in this case is whether the plaintiff 
is entitled to a decree for sj>eci- 
fic performance in the peculiar circum- 
stances of the case. It is not disputed that 
the Defendant No.l received Rs. 300 from 
the plaintiff and executed a kabala in 
respect of the disputed property in favour 
of the plaintiff on the 14th December 
1916. The document, however, was not 
registered ; and it appears that Defendant 
No. 1 subsequently sold the disputed pro- 
perty to the defendants third party. The 
specific relief claimed in the plaint is that 
"the Court may direct defendants first 
party to get the same" namely the kabala 
'registered within the time fixed by the 
Court, that in the event of their failure 
to have registration done even on the 
direction of this Court the Court may get 
the said kabala registered."The jurisdiction 
of the civil Court to direct a document to 
he registered is a qualified one and only 
arises if certain essential conditions are 
satisfied. These conditions have not been 
satisfied in this case, and the plaintiff was 
clearly not entitled to the si>ecific relief 
claimed by him. 

But tins conclusion, in my opinion does 
not decide the case. The Registration 
Act does not touch or affect the equitable 
jurisdiction jrcssessed by the civil Courts 
to pass a decree for specific j>erformance 
where circumstances exist entitling the 
plaintiff to such a decree. This was the 
view taken by the learned Munsif. The 
learned Subordinate Judge has taken a 



90 Patna 



KANHAIYA LAL v. MT. SUGA KUAR 



1926 



different view and has relied upon the 
decision in Edun v. Mahomed Siddik (l) 
in support of his view. That case decided 
that, independently of S. 77 of the Begis- 
tration Act, a suit to compel registration 
of a document will not lie a decision 
with which we entirely agree. The ques- 
tion raised in this case is whether the 
plaintiff is entitled to a decree for specific 
performance of the agreement to sell 
the disputed property to him ; and on 
this question the decision of Mukherji, J. 
in Surendra Nath Nay'*. Chowdhury v. 
(hpal Ch under Ghosh (2) entirely supports 
the view of the learned Munsif, As was 
pointed out in that case, it is not a suffi- 
cient performance of the contract for the 
defendant merely to execute a conveyance: 
for until the kabila is registered, it is 
inoperative in law. The execution of the 
kabala by the defendant not having con- 
verted the executory contract into an exe- 
cuted contract, the plaintiff is clearly 
entitled to a decree directing the defen- 
dant to carry it into execution. It was 
contended before us that the agreement 
between the pirties having been reduced 
into writing, the only evidence of that 
agreement would be that furnished by the 
document, and that the document is in- 
admissible in evidence as it was not re- 
gistered in accordance with law. I know 
of no authority which decides that an 
agreement for sale has to be registered 
under the Begistration Act. The true 
view is that although a kabala which has 
not been registered is inoperative as a 
kibala, yet it is admissible in evidence in 
a suit to enforce specific performance of 
the contract which must be deemed to 
have preceded the execution of the 
k thai a. 

It was then contended that the 
plaintiff has not asked for a decree 
for specific performance and that this 
Court ought not to convert a 
suit for registration into a suit for spe- 
cific performance. The argument, in my 
opinion, is a technical one, and ought not 
to weigh with us. All the material facts 
entitling the plaintiff to a decree for spe- 
cific performance are pleaded. These 
facts were found in favour of the plaintiff 
by the learned Munsif and were not 
challenged before the Subordinate Judge. 
That being so.'the plaintiff was clearly 



[1888] 9 Oal. 150=11 C. L. R. 440. 
[1910] 12 C. K J. 464. 



entitled to succeed before the learned 
Subordinate Judge. 

The decree passed by the learned 
Munsif, is however not strictly in ac- 
cordance with law. The learned Munsif 
directs the Sub-Begistrar of Banka 
to register the kabala. As I have 
already pointed out, the civil Court 
has no jurisdiction to pass a decree 
of this nature independently of S. 77 of 
the Begistration Act. The plaintiff is, 
however, entitled to a decree for specific 
performance by the execution and regis- 
tration of a fresh document within three 
months from the date hereof. 

We allow the appeal, set aside the 
judgment and decree passed by the Court 
below and vary the decree passed by the 
Court of first instance in the manner in- 
dicated above. If the defendant should 
fail to execute and register the document 
within the time allowed, the Court of 
first instance will do so on behalf of the 
defendant. 

The plaintiff is entitled to his costs 
throughout. 

Ross, J. I agree. 

Appeal allowed. 



* * A I. R 1926 Patna 90 

DAS AND ADAMI, JJ. 

JKanhaiya Lai Sahu Plaintiff Ap- 
pellant. 

v. 

Mt. Suga Ruai Defendant Bespon- 
dent. 

Appeal No. 94 of 1922, Decided on 29th 
May L925, from a decision of the D. J., 
Darbhanga, in original decree D/- 3rd 
January 1922. 

Tfr ^ (a) Hindu Laic Adoption Karta putra 
is not In better position than dattaka putra 
Karta putra does not. inherit any person except 
the adoptive father Karta putra does not by mere 
adoption get a right to succeed, to the estate of 
adoptive father Natural born son excludes alto- 
getlier the karta putra. 

It is a very strong thing to say that a karta 
putra who retains his status in/, his natural 
family and loses no right in that family is in a 
bettor position than a datta putra who un- 
doubtedly loses his status in his natural family 
and who is liable to be defeated in his adoptive 
family by the birth of a natural born son. The 
modern tekt books refer to the adoption of a 
karta putra as an adoption in the kritrima form ; 
but this is not quite correct. All that is neces- 
sary is the consent of the adoptee, which involves 
the adoptee being an adult. He does not lose the 



1926 



KANHAIYA LAL v. MT. SDTGA KUAR (Das, J.) 



Patna 91 



rights of inheritance in his natural family, and 
takes the inheritance of his adoptive father, but 
not of his father's father or other collateral 
relations nor of the wife of his adoptive 
father or her relations. It is no part of the 
contract that the adoptee should succeed to the 
estate left by his adoptive father. A dattak son 
who loses his status in hia natural family has no 
absolute right to the estate of his adoptive father. 
He is liable to ba defeated by a gift inter vivos or 
by a devise made-by his father in favour of another 
parson. He is also liable to be defeated, if not 
absolutely, certainly to the extent of important 
shares in the estate by the birth of a natural born 
sou subsequent to the adoption. Succession to the 
estate of the adoptive father is not inherent in 
the status of a karta putra. Where a natural 
born son is in existence he is entitled to exclude 
every other kind of son from sharing with him 
in the estate of his father : 1 Sel. EC p. 11 ; 6 I. D., 
Old *erie<<. page 8, Expl. and doubted. 
[P 91, C 1, P 92 01 and 2, P 98, C 1. P 94 C. 1] 

K. P. Jayaswal, S N. Gupta and Md. 
Hasin Jan for Appdlant. 

S. M. Mullick and L. K. Jli a for Res- 
pondent. 

Das, J. Although I differ from the 
learned District Judge in regard to both 
the questions decided by him, I think 
that the decree pronounced by him is 
right and that it ought to he affirmed. 

The plaintiff claims to have been 
adopted by Khub Lai as his karta putra 
on the 26th January 1915. Khub Lai 
died on the 28th December 1915 and a 
posthumous son Hanuman Prasad, was 
born to him who, however, died shortly 
afterwards. The plaintiff contends that, 
notwithstanding the birth of a posthu- 
mous son, he is entitled to succeed to the 
estate of Khub Lai to the exclusion of 
the defendant, who is the widow of Khub 
Lai and who is in possession of the 
estate not as the heiress of Khub Lai, 
but as the heiress of her deceased son. 
Hanuman Prasad. Two questions were 
raised in the litigation : first, the ques- 
tion of fact, namely whether the plaintiff 
was adopted by Khub Lai as his karta 
putra and ; secondly the question of law, 
namely, whether, assuming that he was 
so adopted, he is entitled to succeed to 
the properties in the events which have 
happened. The learned District Judge 
held that the adoption was not proved 
and decided the question of fact in favour 
of the defendant. In regard to the other 
question raised before him, he thought 
that the plaintiff would have been 
entitled to l/4fch share in tfye estate of 
Khub Lai had he succeeded in proving 
bis adoption. In my opinion the plaintiff 
has established the factum of his adop- 
tion, but he is not entitled to succeed to 



the estate of Khub Lai havir.g regard 
to the fact that a son was born to Khub 
Lai subsequent to the plaintiff's adoption. 

I will first deal with the question of 
fact. Khub Lai had three daughters, 
Tapeshwar Kuer, Dhano Kuer and 
Muneswar Kuer, of whom Dhano Kuer 
and Muneswar Kuer were alive at the 
date of the alleged adoption. The plain- 
tiff is the son of Tapeshwar Kuer who 
died many years ago. Khub Lai had 
also a son who died in his infancy. It 
is the common case that Kanhaiya Lai, 
the plaintiff, was brought up as a son 
by Khub Lai and was the object of his 
love and affection. He certainly looked 
upon him as his son and referred to 
him as his son to all his friends. The 
plaintiff lost both his father and mother 
in his infancy, and, as I have said, 
was brought up by Khub Lai and was. 
married at his expense. The learned Dis- 
trict Judge accepts the case of the plaintiff 
as inherently probable. He also thinks 
that " the story told has been told in a 
consistent way and there is not much 
contradiction in the same." He says 
that he " might have been disposed to 
accept their evidence " but for certain 
circumstances of the case to which he 
refers, 1 will presently refer to these 
circumstances myself ; it is sufficient for 
me to point out at the present moment 
that in the view of the learned District 
Judge the story told by the plaintiff i* 
inherently probable and is supported by 
evidence which is consistent. [After 
discussing the evidence his Lordship 
remarked] : 

I hold that the plaintiff has established 
that he was adopted by Khub Lai as- 
his karta putra. 

The next question is whether in the 
events which have happened the plaintiff 
is entitled to succeed to the estate of 
Khub Lai. The plaintiffs case is : first, 
that he has the right to succeed to the 
estate of Khub Lai by virtue of the 
contract at the time of the adoption; 
and, secondly, that in any everit he is. 
entitled to succeed to a share of that 
estate. The defendant's case is that the 
only contract between the parties waa 
as to sonship and that he took no estate 
by virtue of that sonship although he 
might have succeeded to one had a son 
not been born to Khub Lai. It is, in my 
opinion, a. very strong thing to say that 
a karta putra who retains his status in 



92 Patna 



KANHAIYA LAL v. MT.SUGA KUAR (Das, J.) 



1926 



his natural family and loses no right 
in that family is in a better position 
than a clattak putra who undoubtedly 
loses his status in his natural family 
and who is liable to he defeated in his 
adoptive family by the birth of a natural 
born son. The modern text books refer to 
the adoption of a Karta Putra as an adop- 
tion in the Kritrima form ; but it seems to 
me that this is not quite correct. I do 
not however, propose to enter upon this 
question as it is not material to this litiga- 
tion. Ifc may be that the system as to 
Karta putra is an extension of the Kritrima 
form of adoption ; but there is no doubt 
whatever that the system as we now know 
it in Mithila is the invention of that very 
ingenious person, the Mithila Brahmin 
who is so anxious to preserve unsullied 
the purity of his genealogical table. The 
difficulty with which the Mithila Brahmin 
was faced was this : where an adoption 
took place the name of the adoptee had to 
be removed from the genealogical table of 
his natural family and a question might 
be raised whether the genealogical table 
with the correction was an honest docu- 
ment. He, therefore, devised the system- 
the system of Karta putra under which a 
person on adoption did not lose his status 
in his natural family, though he acquired 
, status as the son of his adoptive father. 
No ceremonies or sacrifices are necessary 
to the validity of this particular form of 
adoption. All that is necessary is the 
consent of tho adoptee which involves the 
adoptee being an adult. As I have said, 
he does not lose the rights of inheritance 
in his natural family, and takes the in- 
heritance of his adoptive father, but not of 
his father's father or other collateral 
relations nor of the wife of his adoptive 
father or her relations. The following 
passage in Colebrooke's Digest (Book V, 
Ch. IV, Sec. 10, cited in Sarkar's Adoption 
2nd edition, page 447) is of interest as 
stating the position in this particular form 
of adoption : "Sons are thus adopted in 
Mithila; the practice of adopting sons 
given by their parents was there abolished 
by Sridatta and Pratihasta, although the 
latter had been himself adopted in that 
manner, Their motive was, lest, a child 
already registered in one family, being - 
again registered in another, a confusion of 
families and names should thence ensue. 
A son adopted, in the form so briefly 
noticed in the present section, does not 
Jose his claim to his own -family, nor 



assume the surname of his adoptive 
father ; he merely performs obsequies, and 
takes the inheritance." The reason for 
this particular form of adoption in Mithila 
is also explained by Macnaghten as follows 
(Macnaghten's Hindu Law, Vol. 1, 95-100): 
" But according to the doctrine of Vachas- 
pati, whose authority is recognized in 
Mithila, a woman cannot, even with the 
previously obtained sanction of her hus- 
band, adopt a son after his death, in the 
Dattak form ; and to this prohibitory rule 
may be traced the origin of the practice 
of adopting in the Kritrima form, which 
is there prevalent. This form requires no 
ceremony to complete it, and is instan- 
taneously perfected by the offer of the 
adopting, and the consent of the adopted 
party. It is natural for every man to 
expect an heir, so long as he has life and 
health ; and hence it is usual for persons, 
when attacked by illness, and not before, 
to give authority to their wives to adopt. 
But in Mithila, where this authority 
would he unavailable, the adoption is per- 
formed by the husband himself ; and re- 
course naturally had to that form of adop- 
tion which is most easy of performarce, 
and therefore less likely to be frustrated 
by the impending dissolution of the party 
desirous of adopting," The rights of tho 
adopted son would seem to depend on the 
contract between him and his adoptive 
father, and the question is what is that 
contract ? 

Mr. Jayaswal strongly contends before 
us that it is part of the contract that the 
adoptee should succeed to the estate left 
by his adoptive father, I have investiga- 
ted this matter with some care and I find 
it difficult to accept this proposition. As 
I have said, a Dattak son who loses his 
status in his natural family has no abso- 
lute right to the estate of the adoptive 
father. He is liable to be defeated by a 
gift inter vivos or by a devise made by hi^ 
father in favour of another person. He i^ 
also liable to be defeated, if not abso- 
lutely, certainly to the extent of important 
shares in the estate by the birth of a 
natural born son subsequent to the adop- 
tion. What reason is there f of suggest iu^ 
that a karta putra is in a better position 
than a Dattak soti ? It is not suggested 
that the contract in regard to this parti- 
cular fornj of sonship involves a contract 
by the father to devise the estate to the 
adoptee. If that were established, it 
might be urged that the adoptee might 



1926 



KAXHAIYA LAL v. MT. SUGA KUAR (Das, J.) 



Patna 99 



claim specific performance of the agree- 
ment against the person in actual posses- 
sion of the estate agreed to be devised 
to him. If that were the position 
of Mr. Jayaswal, the answer would 
be that the plaintiff was admittedly 
a minor at the date of the adop- 
tion, and whatever the position may 
be in Hindu Law, a person in a British 
Court cannot sue for specific performance 
of an agreement entered into at a time 
when he was a minor. But if it is not 
the case of the plaintiff that there was a 
contract to devise the estate to him, what 
else can there be in the argument ? It 
surely cannot be suggested that anyone 
can alter the rule of succession laid down 
by Hindu Law. To succeed in his argu- 
ment Mr. Jayaswal must establish that it 
is the rule of Hindu Law that a karta 
putra must succeed to the estate of his 
adoptive father and that it is not open to 
his adopted father to defeat his interest 
either by a gift inter vivos or by a Will to 
take effect upon his death. For this pro- 
position there is no authority, and I am 
unable to accept it. 

^Ir. Jayaswal relies upon a decision in 
Kullean Singh v. Kir pa Sinyh and Bholee 
Sinyh (l). In answer to a question put 
by the Court in that case the pundit thus 
described the ceremony of adoption in 
this particular form : " Let the person 
(intending to adopt) first consult a Brah- 
min, and, having discovered a propitious 
moment, let him, in the presence of the 
Brahmin, and of some friends or relatives, 
place something in the hand of the person 
to be adopted, and say to him : ' Be thou 
my adopted son, my goods and effects shall 
become thy property.' The person adopted 
will reply : I agree to become thy son' ". 
Mr. Jayaswal relies upon the fact that it 
is part of the contract that the adopted 
father says : " My goods and effects shall 
become thy property," and so they will, 
unless the adoptive father makes a gift of 
the goods and effects or gives them away 
by his Will to take effect on his death. In 
my opinion the passage upon which Mr. 
Jayaswal velies does Dot establish that 
succession to the estate of the adoptive 
father is inherent in the, status of a karta 
putra. 

But apart from any other view it seems 
to me that this is not a very cdrrect way 
of describing the ceremony. We have two 
latter cases : Mt. Sutputte v. Indranaund 

U) 1 S^l. Rip. 11=6 Indian Decisions, O. 8. * 



Jha (2) and Ooman Dat v. Kunhia 
Singh (3). In both these cases the cere- 
mony is thus described : " The prescribed 
form for adopting a Kritrima son is as 
follows : In an auspicious hour let him 
bathe, and also cause the person whom he 
wishes to adopt to be bathed ; let him 
present something at his pleasure, and 
say : * Be you my son' ; and let the son 
answer, ' 1 am become your son/ Then 
let him, according to custom, give a suit 
of clothes to the son. These are the legal 
conditions of adoption," and then it is said 
in the case in 2 Select Report at page ^24 
that " The adopted son will inherit the 
property of his adoptive father, even 
although the latter leave a widow." This- 
is accepted by Mayne as the ceremony in 
the Kritrima form of adoption. He says- 
as follows : " At an auspicious time, the 
adopter of a son, having bathed, addressing 
the person to be adopted, who has also- 
bathed, and to whom he ^has given some 
acceptable chattel, says : ' Be my son'. He 
replies : * I am become thy son'. The 
giving of some chattel to him arises 
merely from custom. It is not necessary 
to the adoption. The consent of both 
parties is the only requisite ; and a set 
form of 'speech is not essential :" (see S. 
20G.) It seems to me therefore that it can- 
not he urged that the plaintiff takes the 
estate of Khub Lai by virtue of his original 
contract with him. 

The next question is whether he is 
entitled to any share in the estate of Khub 
Lai. This question admits that the 
natural born son was the proper person to 
succeed to the estate of Khub Lai ; but 
the question still remains whether the 
adopted son is to be altogether excluded. 
Now, on this question different Smriti 
writers have laid down different rules ; 
but we are concerned with the rule in the 
Mithila School. After quoting the vari- 
ous Smriti writers, Bachaspati Misra, who 
is of paramount authority in Mithila says 
as follows : " Mann and other legislators 
have said that, notwithstanding other 
kinds of some sons, the- legitimate son 
alone receives the whole estate of his 
father, but they have also declared that 
the other sons are sharers of the estate. 
To remove this contradiction it must be 
understood that, if the legitimate son be 

(2) 2 Sel. Rep. 2226 Indian Decisions, 0. 8. 
529. 

(3) 3 SeL Rep. 192- : 6 Indian Decisions, 0. S. 
824. 



Patna 



SRIPAT SINGH v. NABESH OHANDKA BOSE 



1026 



virtuous, he shall receive the whole estate 
without giving a share to the others ; but 
if he he void of good qualities, and 
others possess them, they are entitled to 
have their respective shares, as has been 
stated above." In my opinion this is con- 
clusive of the rights of the parties in this 
litigation. It was contended on behalf of 
the appellant by Mr. Jayaswai that in 
order to entitle a legitimate son, by which 
I understand a natural born son, to suc- 
ceed, he must show that he is virtuous ; 
but the question does not arise because 
the natural born son in this case died soon 
/ifter his birth and it cannot bo suggested 
that he was not virtuous. If this parti- 
cular form of adoption be the same as the 
kritrirna form of adoption, then this pass- 
age in Vivaria Chintamani (Tagore's Edi- 
tion page <287) is conclusive of the rights 
of the parties. If, on the other hand, this 
particular form of adoption is not the 
samo as kritrima form of adoption, as I 
urn inclined to think, the rule laid down 
by Bichaspati Misra must still apply 
sinco he lias made it clear that where a 
natural born son is in existence, he is 
entitled to exclude every other kind of son 
from sharing witli him in the estate of his 
father. 

In my opinion tiio suit was rightly dis- 
missed by tho learned District Judge and 
I must dismiss this appeal with costs. 

Ad ami, 3. I agree. 

dismissed. 



if A.I R. 1926 Patna 94 

DAS AND ADAMI, 33. 
Sri pat Singh and oJ/i<?rs -Defendants 
Appellants. 

v. 

Naresh Chandra BOSK and others 
Plaintiffs Respondents. 

Appeal No. 91 of 1921, Decided on 27th 
May 1925, from Original decree, of the 
Sub.-J., Purnea, DA 8th October 1920. 

(a) Hindu Law Damdupat Rule does not 
.apply to muffaill. 

The rule of darndupat is not applicable to the 
muffasil. Though the mortgage bond may be 
executod in Calcutta, yet, if tho bond comprised 
properties which are in the muffasil the rule cf 
darndupat cannot be applied. [P. 96, C. 1] 

if (b) T. P. Act, S. 8 Property mortgaged for 
paying Government revenue Court directing 
jnortgage to have priority over pre-existing mort- 
gage Latter mortgage Is postponed. " 



Where a Kecsiver of property is authorised by 
the Court to mortgage the property and raise a 
loan for paying Government revenue and 
the Court orders the mortgage to have priority 
over a pre-existing mortgage and the money 
is utilised for the payment of revenue and to 
save the property from sale, the mortgage so 
sanctioned by the Court has priority over the 
pre-existing mortgage. [P. 97, C. 1] 

(c) Benami Onus of proof is on party setting 
up plea. 

An ostensible purchaser must be assumed to be 
the real purchaser until the contrary is shown. 

[P. 98, C. 2] 

1t (d) T. P. Act, S. 74 Puisne mortgagee not 
tmplcaded in suit by prior mortgagee Puisne 
mortgagee cannot redeem the property merely by 
paying the amount for which the property was 
purchased in auction. 

The right which a puisne mortgagee, who was not 
joined as a party to the suit of the prior mort- 
gagee, has, is what he could have claimed if he 
had been a party to the suit, namelv, a right to 
redeem the prior mortgage with a view to enforc- 
ing his own mortgage. [P. 100, C, 1] 

(e) T. P. Act, S. 60 Integrity of mortgage can- 
not be broken except by consent of all persons 
interested or by mortgagee Consent of parties 
may be inferred from circumstance*. 

The mortgage being one and indivisible security 
for the debt and every part of it, the mortgagor 
cannot redeem piecemeal, unless the integrity of 
the mortgage has baan broken up by the act of 
the mortgagee. This rule will operate so as to 
prevent the mortgagor from claiming the right 
to redeem any particular property which may be 
included in mortgage security or the purchasers 
of fragments of the equity or redemption from 
claiming the right to redeem the fragments in 
which they may be interested and save as a 
matter of special arrangement and bargain entered 
into between all the persons interested, neither 
the mortgagor nor the mortgagee, nor persons 
acquiring through either partial interest in the 
subject, can, under the mortgage, get relief, 
except in consonance \\ith the principle of indivi- 
sibility. 

A person had a mortgage on two properties. 
with regard to one of them, by the consent of the 
parties and by i rder of Court a subsequent mort- 
gage was created which was to have priority over 
the former mortgage. [P. 100, C. 2J 

Held : that by this arrangment the parties must 
be deemed to have given up the right to claim 
the integrity of the mortgage. 

(/) T. P. Act, S. SI Puisne mortgagee with 
notice of former mortgage cannot claim beniflt of 
S. 81. 

A second mottgagee is not entitled to the 
benefit of S. 81 if he had notice of the previous 
mortgage. He is entitled to have the accounts 
taken on the footing of his mortgage and to a 
decree giving him the right to proceed against 
the surplus sale proceeds of the praperty. 

[P, 101, C. 1] 

if (g) T. P. Act, S. 52 Scope 

A transfer made by order of Court is an <*xcpn- 
tion to the section. [P, C.] 

P. C. Manulc, S. M. Mullick and Harih ar 
Prasad for Appellants. 

Hasan Imam, S. P. Sen, A. R. Boy, 
S. N. Bose and S. C. De for Respondents! 



1926 



SRIPAT SINGH v. NARESH CHANDRA BOSE (Das, J.) 



Patna 95 



Facts. On the 10th May 1884 Lach- 
mipat Singh and Chatrapat Singh execu- 
ted a mortgage of Parganna Sripur in the 
District of Purnea and the house and 
premises No. 127, now numbered No. 147, 
Cotton Street in the town of Calcutta, in 
favour of Jadulal Mullick as a security 
for a sum of money lent and advanced by 
Jadulal Mullick to them. Bibi Jamehar 
Kumari, Defendant No. 4, is the widow 
of Chatrapat Singh, and Sripat Singh and 
Jagatpat Singh, Defendants Nos. 14 and 3, 
are the sons of Chatrapat Singh and they 
represent the interest of the original 
mortgagors in this litigation. 

On the 7th June 1889 Srimati Saras- 
wati Dassi, the widow and administratrix 
of Jadulal Mullick, instituted a suit, being 
Suit No. 253 of 1889, in the Original Side 
of the Calcutta High Court to enforce the 
mortgage bond of the 10th May 1884. 
She obtained a preliminary decree on the 
1st August 1889 which was made absolute 
on the 19th January 1891. 

On the 22nd March 1895, the Official 
Receiver of the Calcutta High Court was 
appointed Receiver of the mortgaged pro- 
perties with liberty to mortgage the pro- 
perties, which were the subject-matter of 
the litigation, to raise a sum of money for 
payment of Government revenue in res- 
pect of Parganna Sripur. The order of 
the Calcutta High Court expressly pro- 
vided that the mortgage bond to be exe- 
cuted by the Official Receiver was to have 
priority over the mortgage bond of the 
10th May 1884 in respect of Parganna 
Sripur. 

On the llth May 1895, the Official 
Receiver of the Calcutta High Court, as 
Receiver of the mortgaged properties, and 
under express order of the Calcutta High 
Court, borrowed Rs. 17,000 from Hari 
Charan Bose and as a security for the 
repayment of the money advanced with 
interest thereon mortgaged both Parganna 
Sripur and 147, Cotton Street, to him. 

On the 2nd March 1896, Saraswati 
'Dassi, the decree-holder in Suit No. 253 
of 1889, assigned all her rights under the 
decree to Bibi Jamehar Kumari in con- 
sideration of the sum of Rs. 1,10,000 paid 
by Jamehar Kumari to her. 

On the 26th March 1896 the Calcutta 
High Court passed an order .giving the 
Receiver liberty to raise a further loan of 
Rs. 6,000 on second mortgage of larganna 
Sripur, such mortgage to have priority 



over the mortgage of the 10th May 1884 
in respect of Parganna Sripur. 

On the 26th May 1896, the Receiver 
borrowed a sum of Rs. 6,000 from Brin- 
daban Chandra Dutt and executed a 
second mortgage of Parganna Sripur in 
his favour. Brindaban Chandra Dutt has 
been cited as the 5th defendant in this 
litigation. 

On the 10th April 1897 the Registrar 
of the Calcutta High Court put up 147, 
Cotton Street, to sale pursuant to the 
decree in Suit No. 253 of 1889 and 
Jamehar Kumari, the substituted decree- 
holder, purchased the property, free from 
all encumbrances, for the sum of 
Rs. 50,000. 

On the 10th April 1910 Hari Charan 
Bose died leaving the plaintiff as his only 
son and heir under the Hindu Law by 
which he was governed. 

On the 9th May 1919 the suit, out of 
which this appeal arose, was instituted 
by the plaintiff to enforce the mortgage 
bond of the llth May 1895 and, in addi- 
tion to the persons already mentioned, the 
Official Receiver of the Calcutta High 
Court was joined as the first defendant 
in the suit. 

Das, J. [After stating facts as set out 
above his Lordship proceeded]. Various 
contentions 1 were raised by the defendants 
in their written statement and they havs 
all been dealt with by the learned Sub- 
ordinate Judge. As between the plain- 
tiff and Sripat Singh and Jagatpat Singh, 
the main questions appear to have been, 
first, whether the plaintiff's suit was 
barred by limitation ; secondly, whether 
there was legal necessity for the loan, and 
thirdly, whether the plaintiff was entitled 
to interest exceeding the principal sum 
advanced. The question as to whether 
the mortgage bond was genuine seems also 
to have been raised in the Court below. 
That question has been answered by the 
learned Subordinate Judge in favour of 
the plaintiff and Mr. Manuk appearing 
on behalf of defendants, Sripat Singh and 
Jagatpat Singh, very properly accepts the 
decision of the learned Subordinat6 Judge 
on this point. 

In regard to the question of limitation, 
Mr. Manuk contended that the mortgage 
in suit was not an English mortgage ; but 
it seems to us that it is unnecessary for 
us to express any opinion on this point 
since upon the finding of the Court below 
there can* be no doubt that the suit is n 



96 Patna 



SRIPAT SINGH v. NARESH CHANDRA'BOSE (Das, J,} 



1926 



barred by limitation. There were vari- 
ous payments from time to time made by 
the mortgagor and the question in the 
Court below was whether these payments 
were genuine payments or whether the 
hooks of the Official Eeceiver were not 
forged in order to save the suit. All 
these payments were made by the Official 
Receiver and the cash book of the Official 
Receiver undoubtedly supports the case 
of the plaintiff. The last payment was 
rnarle on the 8th July 1910 and the pay- 
ment before that was made on the !28th 
February 1900. It was contended in 
the Court below that the entries made 
in the cash book of the Official 
Receiver were not genuine. Mr. Manuk 
has inspected the books of the Official 
Receiver and has very properly admitted 
those payments. lie concedes that the 
suit is not barred by limitation and I do 
not propose to discuss the question 
any further in regard to the question of 
legal necessity. Mr. Manuk confined his 
arguments to the question of interest 
claimed in. the suit. The interest claimed 
is 1C) per cent, per annum with six 
monthly rest. In my opinion the interest 
claimed is very moderate and there is no 
reason to take the view that the interest 
is excessive. 

In regard to the last question raised, 
the argument is founded upon the rule of 
damclupat. The Calcutta High Court has 
uniformly held and we agree with those 
decisions that the rule of darndupat is 
not applicable to the muffasil. It is 
cjuite true that the mortgage bond was 
axecuted in Calcutta, but the bond com- 
prised properties which are in the muffa- 
sil and I am of opinion that we cannot 
apply the rule of damdupat in a case 
heard in Purnea. 

The question as between the plaintiff 
and Jarnehar Kumari is as to who is en- 
titled to priority in respect of the mort- 
gaged properties. Jamehar Kumari is the 
widow of one of the mortgagors ; but she 
took an assignment of the rights of the 
decree-holder in Suit No. 253 of 1889 in 
her favour. The extreme contention ad- 
vanced on her behalf is that she is entitled 
to priority over the plaintiff's mortgage 
in respect both of Perganna Sripur and of 
the Cotton Street property. She contends 
that so far as the Cotton Street property 
is concerned, she purchased it at the 
Registrar'? sale free from all encum- 
brance , and ihac siie is entitled to retain 



it and to repel the attack made on it by 
the plaintiff in this litigation. In re* 
gard to perganna Sripur she contends 
that the utmost that can be said in favour 
of. the plaintiff is that he is entitled to 
redeem her. The extreme contention on 
behalf of the plaintiff is that he is en- 
titled to priority over the interest of 
Jamehar Kumari, first, because the 
money advanced by his father saved the 
property from loss or destruction ; and, 
secondly, because Jamehar Kumari is the 
benamidar of Chatrapat Singh. In regard 
to the last contention it is to be pointed 
out that the plaintiff did not suggest any 
case of benami in his plaint. Indeed he 
alleged in the 5th para, of the plaint that 
his father released No, 147, Cotton Street, 
Calcutta from all claim in respect of his 
mortgage and the plaint as originally filed 
certainly suggested that the plaintiff did 
not seek to enforce the mortgage by the 
sale of the Cotton Street property. This 
is a question in which the plaintiff is not 
really interested ; for it appears that 
Parganna Sripur is sufficient to meet his 
claim. But Brindaban Chandra Dutt, 
who has a second mortgage of Perganna 
Sripur is vitally interested in this ques- 
tion ; and he undoubtedly alleged a case 
of benami in his written statement. 
Brindaban Chandra Dutt contended that 
Jamehar Kumari was a benamidar for her 
husband who was then alive, that Hari 
Charan Bose did not release the Cotton 
Street property from all claim in respect 
of his mortgage and that he was entitled 
to have the debt of the plaintiff satisfied 
out of the Cotton Street property which 
was not mortgaged to him so far as such 
property would extend. 

Now clearly the plaintiff is entitled to 
priority in respect of Perganna Sripur. It 
is not disputed that Government revenue 
to the extent of Rs. 16,000 in respect of 
Perganna Sripur was payable on the 28th 
March 1895 and that the Receiver had 
no funds in his hands out of which he 
could have paid the Government revenue. 
Perganna Sripur was therefore in im- 
minent danger of being sold for non-pay- 
ment of arrears of Government revenue* 
In these circumstances the Calcutta High 
Court passed an order with the consent 
both of the plaintiff and Chatrapat Singh 
that the Receiver should raise a loan to 
pay the Government revenue. The mate* 
rial portion of the order of the Calcutta 
High Court runs as follows 



1126 



SRIPAT SINGH v. NABESH CHANDRA BOSE (DAS, J.) 



Pallia 97 



And it is further ordered with the 
like consent that the said Receiver be at 
liberty upon such terms and conditions 
as to rate of interest or otherwise as he 
may deem necessary to raise a sufficient 
sum by mortgage of the said properties 
comprised in the mortgage to the plain- 
tiff for the purpose of paying the Govern- 
ment revenue payable in respect of the 
said zamindari Parganna Lot Sripur on 
the twenty-eighth day of March instant 
and that such mortgage be executed and 
registered by the said Receiver for and on 
behall of the defendant and such mort- 
gage to have priority over the existing 
mortgage of the said zamindari Parganna 
Lot Sripur." 

In pursuance of this order the Receiver 
borrowed Rs, 17,000 from the plaintiff's 
father on the security of both the pro- 
perties and there is conclusive evidence 
that with the money so raised he paid 
the Government revenue and saved the 
zamindari property from destruction. 
The evidence is also conclusive that the 
Receiver spent the entirety of the money 
so raised in paying Government revenue 
and in meeting cerfcain incidental expenes. 

In my opinion the plaintiff is entitled 
to what the Courb gave him, namely, a 
first charge on parganna Sripur. An ad- 
vance was made by the plaintiff in order 
bo save pargana Sripur from loss or de- 
struction ; and on principles which are 
well recognized in our Courts the advance 
[3O made is payable in priority bo all other 
charges of earlier dabe. In my opinion 
the decision of the learned Subordinate 
Judge on this point is right and must be 
affirmed. 

The next question is with reference to 
the Calcutta property. Mr. Manuk, ap- 
pearing on behalf of Jamehar Kumari, 
strongly contends that the Calcutta p*o- 
perty is not within the scope of the suit 
and that the learned Subordinate Judge 
should not have given any direction with 
reference to it. As I have pointed out, 
the plaintiff undoubtedly said in the 
plaint that his father released the Cal- 
cutta property from all claim in respect 
of his mortgage. He instituted the suit 
in Purnea and Mr. Manuk relies upon the 
allegation in the llth ]5ara. of the plaint 
which runs as follows : 

"The property in suit being situated in 

zillah Purnea, thanas Bahadurganj and 

Kasba and district Purnea within the 

local limits oi the jurisdiction of this 

1926 P/ 13*14 



Court, the cause of action arose in 
thanas Bahadurganj and Kasba on the 
26th March 1896." 

I have no doubt whatever that at the 
time when the plaintiff instituted the 
suit he was under the impression that he 
had no claim to put forward with refer* 
ence to the Cotton Street property ; but 
he specifically asked that in default of 
payment by the defendants " the said 
mortgaged premises or a sufficient part 
thereof be sold under the direction of 
this Court." He filed the original mort- 
gage bond with his plaint which showed 
that " the said mortgaged premises " con- 
sisted of the zamindari property and the 
Calcutta property. 

Now, as I have said, the plaintiff is not 
so much interested in this question as 
Brindaban Chandra Dutt is ; and Brin- 
daban denied that the plaintiff's father 
released the Calcutta property from all 
claim in respect of his mortgage. There- 
upon the plaintiff enquired into the 
matter and on the 17th December 1909 
he applied for amendment of the plaint. 
In his petition he stated that on enquiries 
made by him he had ascertained ' that 
as a matter of fact the late Hari Charan 
Bose did not execute any release in the 
year 1910, or in any other year and the 
allegation relating thereto in the said 
para. 5 is a mistake. " He asked for 
amendment of the plaint first by striking 
out from para. 5 the words of which ex- 
ception was taken by Brindaban Chandra 
Dutt and by adding the following state- 
ment in the plaint, namely, " that your 
petitioner has been informed and be- 
lieves that the said Premises No. 147, 
Cotton Street, Calcutta, was sold by the 
Registrar of the Calcutta High Court free 
from all encumbrances on the 10th day of 
April 1897 under an order of the said 
High Court made in the said Suit No. 258 
of 1889 and dated the 5th day of April 
1897, and the Defendant No. 4, Srimati 
Jamehar Kumari, was declared the 
highest bidder and purchased for 
Rs. 50,000. " 

I am unable to agree with the Conten- 
tion of Mr. Manuk that the Calcutta pro- 
perty was not within the scope of the 
suit. I quite agree that the plaintiff 
when he filed the plaint did not think 
that he had any claim to put forward in 
respect of the Calcutta property, but he 
undoubtedly asked the Court to puss a 
decree for the sale of " the said mortgaged 



Patn* 



SRIPAT SINGH v. NARESH CHANDRA BOSE (Das, J.) 



192S 



premises, " if there was default of 
payment by the defendants within the 
time allowed by the Court, and he 
showed that " the said mortgaged pre- 
mises " included the Calcutta property. 
He was undoubtedly labouring under a 
mistake when ho said that his father had 
released the Calcutta property from all 
claim in respect of his mortgage ; but he 
corrected his mistake ; and there is no 
reason to take the view that the Court is 
not entitled to give him such relief as he 
may be entitled to in regard to the 
Calcutta property. 

The next question is as to what relief 
the plaintiff is entitled to in regard to 
the Calcutta property. Jarnehar con- 
tends that she has purchased the property 
free from all encumbrances and that she 
is entitled to hold it free from the 
encumbrance created in favour of the 
plaintiff. Mr. Manuk points out on her 
behalf that the mortgage in favour of the 
plaintiff's father was executed on the 
llth May 1895, that is to say, four years 
after the final decree was passed in Suit 
No. 253 of 1889 and his extreme conten- 
tion is that he is entitled to have what 
the Court gave him, namely, the property 
free from all encumbrance. It was 
faintly suggested by Mr. Manuk that the 
mortgage in favour of the plaintiff's 
father was affected by the rule of lis 
pendens ; but in this Mr. Manuk is 
clearly wrong as the mortgage in favour 
of plaintiff's father was made under the 
order of the Court in Suit No. 253 of 
1889. The case clearly comes within the 
exception recognized in S. 52 of the 
Transfer of Property Act. 

The plaintiff, or to be more accurate, 
Brindaban Chandra Dutt, supports his 
case on two grounds : first, on the ground 
that the mortgage in favour of the plain- 
tiff's father was made pursuant to the 
order of the Court ; and, secondly on the 
ground that Jamehar Kumari was a 
benamidar for her husband Chatrapat 
Singh. So far as the first point is con- 
cerned, it is clearly without substance. 
The Calcutta property was not in any 
danger at all ; and the money lent by the 
plaintiff's father did not save that pro- 
perty from loss or destruction. In the 
second place, the order of the High Court 
gave the priority to the plaintiff's 
mortgage over the bond of the 10th May 
1884 in respect of farganna Sripur only. 
The Court clearly recognized that it 



would be unfair to give the plaintiff's 
bond priority over the bond of 1884 in 
respect of the Calcutta property. In my 
opinion the first contention advanced on 
behalf of the plaintiff fails and must be 
overruled. 

I now come to the question of benamr 
which has been specifically raised by 
Brindaban Chandra Dutt in his written- 
statement. The learned Subordinate 
Judge decided this issue against Jamehar 
Kumari ; but, with all respect, I am> 
unable to agree with his decision on this 
point. Jamehar Kumari is the* ostensible 
purchaser of the property. An ostensible 
purchaser must be assumed to be the real 
purchaser until the contrary is shown. 
The onus is accordingly on the plaintiff 
to establish that the property was pur- 
chased by Chatrapat Singh in the name 
of his wife Jamehar Kumari. 

Now what is the evidence on which the 
Subordinate Judge relies in support of 
his finding as to benami ? In the first 
place, he refers to certain judgments and 
decree made in suits to which Jamehar 
was a party, but to which neither the 
plaintiff nor Brindaban was a party. 

The facts in connexion with that suit, 
Suit No. 496 of 1910, are as follows : 
One Askaran Baid obtained a decree 
against Chatrapat Singh, and in execution 
of that decree he attached No. 147, Cotton 
Street, as belonging to Chatrapat. Jamehtr 
Kumari thereupon laid a claim to that 
property and the claim was disallowed. 
Thereupon she instituted a suit which 
was Suit No. 496 of 1910 in the Original 
Side of the Calcutta High Court for a de- 
claration that she was the absolute owner 
of the property and that the same might 
be released from the attachment effected 
at the instance of Askaran Baid. The 
Court of first instance dismissed her suit 
basing its decision on various judgments 
and decrees which were not inter partes. 
The case went up in appeal and Sir Law- 
rence Jenkins, giving the decision of the 
appeal Court, approached the case from 
the only standpoint from which it could 
be approached, namely, whether Jamehar 
Kumari had clearly established that she 
was the real purchaser, having regard to 
'the fact that the claim case had been de- 
cided against her. In the course of his 
judgment, Sir Lawrence Jenkins said as 
follows : "I recognize that the value 
of this opinion, namely, the opinion of 
the learned Judge in the Court oi first 



1926 



SRIPAT SINGH v. NABESH CHANDRA BOSE (Das, J.) Patna 99 



instance, is in some measure discounted 
by the fact that it was in part based on 
the view expresed in earlier litigations, 
a class of evidence that wes used by the 
learned Judge to an extent that the law 
does not permit. But apart from this 
evidence, there are circumstances which 
clearly call for explanation and the onus 
in this case is on Jamehar to show affir- 
matively that not only the ostensible but 
the real title also "is in her. She is a 
plaintiff who is calling in question in a 
suit contemplated by the Code (O. 21, 
K. 63), an adverse decision of the Court 
given, it is true, in a summury proceeding 
but conclusive, subject to the result of this 
suit. This is a suit, therefore, to alter or 
set aside a summary decision or order of 
the Court, and it is method of obtaining 
review. The plaintiff in the circum- 
stances of this case cannot discharge the 
burden of proof cost on her by merely 
pointing to the innocent appearance of the 
instruments under which she claims. She 
must show that they are as good as they 
look." It is obvious that the decision 
in the earlier litigation upon which the 
learned Subordinate Judge has relied was 
based on the question of the onus of proof, 
it being held by the Court of appeal that 
Jamedar Kumari failed to establish that 
she was not only the ostensible but the 
real owner of the property. 

In rny opinion the judgment in that 
suit is inadmissible in evidence against 
Jarnehar. In the present case the onus 
is clearly upon the plaintiff to prove that 
the apparent title is not the real title, 
and, in my opinion, the question must be 
decided on the evidence recorded in this 
case, not on the evidence which was re- 
corded in Suit No. 4=96 of 1910. This be- 
ing the position what evidence has the 
plaintiff adduced to prove that Jamehar 
is the benamidar of her husband ? The 
learned Subordinate Judge says as follows: 
" Besides the judgment and decree we 
have also got evidence proving that Cha- 
trapat used to hold each year a meeting 
of his own caste people in No. 147, Cotton 
Street, that Chatrapat had also recently 
mortgaged the house No. 147, Cotton 
Street, to one Bhagwan Das." The only 
evidence on the point is that of Ahir 
Chand Barman who was examined on be- 
half of the defendants. It is to be noted 
that the plaintiff has adduced no evi- 
dence on this point at all apart from 



tendering in evidence the plaint filed by 
Jamehar Kumari in Suit No. 496 of 1910 
and the judgments and decrees of the Cal- 
cutta High Court in that suit. Ahir Chand 
says in his evidence that the property be- 
longed to Jamehar Kumari who made a 
gift of it to her two sons by a deed of gift 
in 1918. In cross-examination he ad- 
mits that Chatrapat mortgaged No. 147, 
Cotton Street, to Bhagwan Das and that 
there was a suit on that mortgage in the 
Calcutta High Court. He also admits as 
follows : " On the invitation of Chatrapat 
a meeting of punchaiti of the Jainas used 
to be held in Calcutta in Katik and Fa- 
goon each year and always during'Chatra- 
pat's life time and that punchaiti some 
times used to be held in 147, Cotton 
Street, and also ( then adds ) sometimes 
in the house of Kesho Das Sital Chand 
Chowdhury." This is all the evidence on 
the question of benami. In my opinion 
this is wholly insufficient ; and the learn- 
ed 'Subordinate Judge should have de- 
cided this issue in favour of Jamehar 
Kumari. I admit that the case is sus- 
picious, but suspicion cannot be regarded 
as a substitute for legal proof. 

That being so, the plaintiff cannot 
claim priority in respect of the Cotton 
Street property. Jamehar Kumari, on the 
other hand, contends that the plaintiff 
has no claim to put forward in regard to 
the Calcutta property as she has purchas- 
ed it free from all encumbrances. In my 
opinion, the contention of Jamehar 
Kumari on this point must be overruled, 
The plaintiff was not added as a party to 
the suit and his right to redeem could not 
be extinguished except by adding him as 
a party to the suit, Jamehar as the pur- 
chaser of the property represents the in- 
terest both of the mortgagor and the 
mortgagee. Now both the mortgagor and 
the mortgagee were consenting parties to 
the order of the 22nd March 1895 which 
gave the Receiver liberty to raise money 
by a mortgage of the properties which 
were the subject-matter of the suit. Nei- 
ther the mortgagor nor the mortgagee 
could be heard to say that there was 
nothing to redeem since the final decree 
was passed so far back as the 19th Janu- 
a*ry 1891. The security created in fa- 
vour of the plaintiff was the result of the 
consent order of the 22nd March 1895, 
and in my opinion, the position of the 
plaintiff in regard to the Cotton 'Street 
property must be that of a puisne mort* 



100 Patna 



SRIPAT SINGH v. NABBSH CHANDRA BOSK (Das, J.) 



1926 



gagee who was not added as a party to 
a mortgage action by the first mortgagee 
against the mortgagor. In my opinion, 
the plaintiff is entitled to redeem and 
$o sell the Calcutta property free from all 
encumbrances or to put up for sale his 
right of redemption which is undoubtedly 
property and is capable of being sold. 

But then arises the important question 
as to the terms upon which redemption 
should take place should the plaintiff 
elect to sell, not his equity of redemption 
in regard to the Cotton Street property, 
but the property itself. Mr. Hasan Imam 
contends that, as Bibi Jamehar Kumari 
purchased the Cotton Street property for 
Ks. 50,000 we should direct that upon 
payment by the plaintiff to Bibi Jamehar 
Kumari of the sum of Bs. 50,000 he 
would be regarded as the holder of the 
first charge on the Cotton Street property 
with power to realize it in the usual way. 
I am unable to agree with this conten- 
tion. The right which a puisne mort- 
gagee, who was not joined as a party to 
the suit of the prior mortgagee, has, is 
what he could have claimed if he had 
been a party to the suit, namely, a right 
to redeem the prior mortgage with a view 
to enforcing his own mortgage. In order 
to determine the rights of the parties we 
must place them in the position which 
they occupied before the Cotton Street 
property was put up for sale, and it is 
obvious that we cannot allow redemption 
on the terms suggested by Mr. Hasan 
Imam. Mr. Susil Madhab Mullick ap- 
pearing on behalf of Jamehar Kumari, on 
the other hand, contends that an account 
should be taken of what is due to Jame- 
har Kumari on the footing of the mort- 
gage of the 10th May 1884 and that re- 
demption can only take place in terms of 
the plaintiff paying to Jamehar Kumari 
what may be found due to her on the 
taking of such accounts. Now the posi- 
tion of the parties with regard to the 
mortgages may be re-stated. Although 
the mortgage in which Jamehar Kumari 
is interested as assignee is prior in date 
to that of the plaintiff, priority in res- 
pect of the Sripur property was given to 
the plaintiff by an order of the Court to 
which all the parties consented. The re- 
sult is that though prior in date, Jameha 
Kumari is a subsequent incumbrancer in 
respect of the Sripur property by her own 
act or the act of her assignor. In regard to 
the Cotton Street property, Jamehar 



Kumari is clearly the prior encumbrancer. 
This being the position Jamehar Kumari 
tells the plaintiff as follows : "Althougrh 
I have no' objection to your realizing your 
security by the sale of the Sripur property 
only I must insist on my security being 
valued as a whole if you claim the right 
to redeem my prior mortgage in regard to 
the Cotton Street property." Now the 
general rule is that a mortgage being one 
and indivisible security for the debt' and 
every part of it, the mortgagor cannot re 
deem piecemeal, unless the integrity of 
the mortgage has been broken up by the 
act of the mortgagee. Now this rule will 
operate so as to prevent the mortgagor 
from claiming the right to redeem any 
particular property which may be inclu- 
ded in the mortgage security or the pur- 
chasers of fragments of the equity of re- 
demption from claiming the right to re' 
deem the fragments in which they ma^ 
be interested, and the rule is firmly estab- 
lished, that save as a matter of special 
arrangement and bargain entered into 
between all the persons interested, neither 
the mortgagor nor the mortgagee, nor per- 
sons acquiring through either partial . in- 
terest in the subject, can, under the mort- 
gage, get relief, except in consonance with 
the principle of indivisibility already re- 
ferred to. 

But the question is not of the plaintiff 
acquiring a partial interest in the subject 
and claiming the right to redeem that in- 
terest. He has got a mortgage of both 
the properties, and, though subsequent in 
point of time, his interest is that of a 
prior mortgagee in regard to Sripur. Now 
if the general rule applies, the position of 
the plaintiff must be substantially that of 
a subsequent incumbrancer both in regard 
to Sripur and the Cotton Street property. 
Jamehar Kumari says : " My security 
must be valued as a whole and redemp- 
tion can only take place on terms of your 
paying me the whole of the mortgage debt 
due to me." Plaintiff replies : " If you 
compel me to adopt that position, you are 
virtually depriving me of my priority in 
regard to Sripur." In my opinion, hav- 
ing regard to the consent order of the 
22nd March 189?, each of -the parties, 
namely, Jamehar Kumari and the plain- 
tiff must be deemed to have given up the 
right to claim the integrity of the mort- 
gage security as against the other. ' By an 
arrangement between the parties, the 
plaintiff is the holder of the equity of 



1926 



SBIPAT SINGH v. NABBSH CHANDRA BOSB (Das, J.) 



Palna 101 



redemption in regard to the Cotton Street 
property, and Jamehar Kumari is the 
holder of the equity of redemption in re- 
gard to Sripur and, in my opinion, the . 
equity between the parties cannot he 
worked out except by holding that there 
was an arrangement between them where- 
by the interest of each of the parties as 
representing the equity of redemption was 
separated and defined. It is well esta- 
blished that, where this is so, the rule as 
as to the indivisibility becomes inappli- 
cable. In my opinion the plaintiff is en- 
titled to redeem the prior mortgage of 
Jamehar Kumari by paying a proportion- 
ate amount of the mortgage debt due on 
the Cotton Street property, and Jamehar 
Kumari is entitled to redeem the prior 
mortgage of the plaintiff by paying a pro- 
portionate amount of the mortgage debt 
due on Sripur, and the value of the pro- 
perties must be taken to be that at the 
date of the mortgage transaction in ques- . 
tion. It is obvious that if either claims 
the right to redeem, an enquiry as to the 
value of the properties at the date of the 
transaction must be undertaken by the 
Court and the mortgage debt must be pro- 
perly apportioned having regard to the 
result of the enquiry. As Jamehar 
Kumari has been in possession of the 
Cotton Street property for some time she 
will not be credited with interest from 
the date she took possession of the proper- 
ty which may be taken - to be the 6th 
March 1898. v 

The only other question is whether 
Brindaban Chandra Dutt is entitled to 
have the debt due to the plaintiff satis- 
fied out of the Cotton Street property so 
far as such property will extend. He re- 
lies upon S. 81 of the Transfer of Proper- 
ty Act, but clearly he is, not entitled to 
the benefit of the section since he had 
notice of the mortgage in favour of the 
plaintiff's father. He advanced money 
with his eyes open and with full know- 
ledge of all necessary facts : and it is im- 
possible for him now to claim the benefit 
of S. 81 of the Act. He has asked for a 
decree in thjs suit, and I think he is 
clearly entitled to have the accounts 
taken on th$ footing of his mortgage and 
to a decree giving him tlie right to pro- 
ceed against the surplus sale-proceeds of 
Sripur. There being no question of mar- 
shalling in this case, the plaintiff is en- 
titled to elect against which of the two 
properties he should first proceed. If he 



elects to put up Sripur to sale and if there 
should be a surplus after satisfying his 
entire claim, Brindaban Chandra Dutt 
will be entitled to proceed against the sur- 
plus for the realisation of the debt due to 
him. Neither the plaintiff nor Brindaban 
Chandra Dutt is entitled to a personal 
decree against those who represent t he 
interest of the mortgagors, and to this 
extent the decree of the lower Court must 
be set aside. 

The decree passed by the Court below 
must be varied by providing as follows : 

(1) Let the following accounts be taken : 

(a) an account of what will be 
due to the plaintiff for principal and in- 
terest on. the mortgage of the llth May 
1895 and for his costs of the suit on the 
day next hereinafter referred to ; 

(b) an account of what will be due to 
Brindaban Chandra Dutt for principal 
and interest on the mortgage of the 26th 
May 1896 and for his costs of the suit on 
the day next hereinafter referred to ; 

(c) an account of what will be due to 
Bibi Jamehar Kumari for principal on 
the mortgage of the 10th May 1884 and 
interest from the date of the mortgage to 
the 5th March 1898 ; 

(2) that if the defendant Bridaban 
Chandra Dutt pays into the Court the 
amount due to the plaintiff six months 
from the date hereof, the plaintiff shall 
assign his mortgage to him and that in 
default thereof, he shall be debarred all 
right to redeem the property, provided 
that he will be entitled to proceed against 
the surplus sale proceeds, if any, of par- 
ganna Sripur hereinafter expressly pro- 
vided ; 

(3) that in case of such foreclosure and 
if the defendant Bibi Jamehar Kumari 
pays into Court the proportionate share 
of the amount so due to the plaintiff in 
respect of parganna Sripur six months 
from the date hereof, the plaintiff shall 
assign his mortgage to her, and that, in 
default thereof, shall be debarred all right 
to redeem the property ; 

(4) that in case of such foreclosure, and 
if the defendants Sri pat Singh and Jagat- 
pat Singh pay into Court the amount so 
due to the plaintiff six months from the 
date hereof, the plaintiff shall deliver up 
to the defendants Sripat Singh and Jagat- 
pat Singh or to such person as they 
appoint all documents in his possession or 
power relating to the mortgaged property 
and shall, if so required, re- transfer the 



102 Patna 



PEBBIRA v. B. I. RAILWAY 



1926 



property to the said Defendants free from 
the mortgage and all encumbrances creat- 
ed by the plaintiff or any person claiming 
under him but that, in default of such 
payment, and if the plaintiff pays to 
Bibi Jamehar Kumari the proportionate 
share of the amount due to Bibi Jamehar 
Kumari in respect of the Cotton Street 
property six months from the date hereof 
the mortgaged property or a sufficient 
portion thereof be sold, and that the pro- 
ceeds of the sale after defraying thereout 
the expenses of the sale be, paid into Court. 

(")) that the sale-proceeds be applied in 
payment of what is declared due to the 
plaintiff as aforesaid, together with sub- 
sequent interest and subsequent . costs and 
that the surplus sale-proceeds of the 
Sripur parganna (if any) be applied in 
payment of what is declared due to the 
defendant Brindaban Chandra Dutt as 
aforesaid together with subsequent inter- 
est and subsequent costs, and that the 
balance (if any) be paid to the defendants 
Sripat Singh and Jagatpat Singh : 

(6) that should the plaintiff fail to pay 
Bibi Jamehar Kumari as provided in the 
fourth clause hereof, parganna Sripur as 
mortgaged to the plaintiff be sold and 
that the proceeds of the sale after defray- 
ing thereout the costs and expenses of the 
sale be paid into Court and applied in the 
manner provided in the preceding clause 
hereof. 

And this Court doth remit this case to 
the Court below for the taking of the 
necessary accounts and for determination 
of : (l) what is the proportionate share of 
the mortgage debt due to the plaintiff in 
respect of parganna Sripur ; and ( 4 2) what 
is the proportionate share of the mort- 
gage debt due to Bibi Jamehar Kumari 
in respect of the Cotton Street property. 

Adami, J, I agree. 

Case remitted. 



A.I. R. 1926 Patna 102 

DAS AND ADAMI, JJ. 
H. O. Pereira Petitioner. 

v. 

East Indian Railway Opposite Party. 

Privy Council Application No. 15 of 

1925, Decided on 23rd June 1925, against 

the decision in First Appeal No. 23 of 

1925. 



% ^C Civil P. C. t S. 109 Final order Order 
allowing appeal under 8. 5, Limitation Act, 1$ not; 
but order refusing to allow would amount to t final 
order. 

Order extending the time for presenting an 
appeal to the High Court under 8. 5 of the Limi- 
tation Act, and thus admitting the appeal is not a 
final order within the meaning of S. 1C9, Civil P. 
C., though an order refusing such extension would 
amount to a final order. [P. 102, C. 2] 

S. N. Bose for Petitioner. 
N. C. Sinha, N. G. Ghose and B. B. 
Mukerji for Opposite Party. 

Judgment. This is an application for 
leave to appeal to His Majesty in Council; 
and the only question which we have to 
decide is whether the order complained of 
is a final order within the meaning of 
S. 109 of the Civil Procedure Code. The 
order to which objection is taken in 
substance extended the time for presenting 
an appeal to this Court under S. 5 of the 
Limitation Act. A final order within the 
meaning of the section is an order which 
finally decides any matter which is di- 
rectly at issue in the case in respect to the 
rights of the parties. We quite agree 
that if we had refused the application 
made to us under S. 5 of the Limitation 
Act, that refusal would have operated as 
a dismissal of the appeal, and, subject to 
the other provision of the section, the 
order would be appealable, not indeed as 
a final order but as "a decree passed on 
appeal." But where time is allowed under 
statutory sanction, and ^he appeal is 
admitted, the case obviously stands on a 
different footing. We have not decided, 
finally or otherwise, any of the matters in 
controversy between the parties in the 
litigation. All that we have done is to 
remove the bar under the Limitation Act, 
thereby enabling this Court to take 
cognizance of the appeal and to decide the 
rights of the parties. We must accord- 
ingly refuse the application with costs. 
Hearing fee : five gold mohurs. 

Application refused. 



1926 



SATYA NIBANJAN v. SUSHILA (Ross, J.) 



Patna 103 



A. I. R. 1926 Patna 103 

DAS AND Ross, JJ. 



Satya Niranjan Chakravarty and others 
Plaintiffs Appellants, 
v. 

Sushila Bala Dasi and others Defen- 
dants Respondents. 

Appeal No. 86 of 1921, Decided on 26th 
May 1925, against the original decree of 
the Sub-J., Jamtara, D/- 30th June 1924. 

(a) Landlord and Tenant Mines and minerals 
Right to, vests In landlord unless expressly divest- 
ed. 

The mineral rights are in the zamindar and he 
is not divested of them by a Jease of the land un- 
less the minerals are expressly granted. [P 109 01] 

(b) Land Tenure Ghaticalt tenure Gliatwal 
can be a mourashl mokarrarldar Distinction bet- 
ween ghatwali within and outside Regulation poin- 
ted out Bengal Ohatwali Land Regulation (29 of 
1814). 

A person may be a mourashi mokararidar and 
also a ghatwal. [1918 P. H. C. C. 805 and A. I. R. 
1924 P. C. 5, Ref.] The distinction between a 
ghatwali within the regulation and ghatwali 
. which is outside the regulation -is that in the for- 
mer case there is no tenure between the zamindar 
and the ghatwal who holds direct from the Govern- 
ment, while in the latter the tenure exists. In the 
former case, while the lands of the ghatwali are 
etill deemed to ba within the zamindari, the zamin- 
dar no longer pays the Government revenue for 
them and has, therefore, no claim to the under- 
ground rights ; his only right connected with these 
lauds is to receive the difference between the rent 
paid by the ghatwal and the amount of the 
Government revenue which was assessed on this 
part of the zamindari. If the Government does not 
claim the mineral rights there is no one to whom 
they can belong but the ghatwal. But in the latter 
case the zamindar still pays the Government re- 
venue on these lands and if the ghatwal claims the 
minerals he muse show some transaction which 
grants him the -minerals either expressly or by 
necessary impl : cation. [P 105 C 2 ; P 106 C 1] 

(c) Criminal P. C., S. 145 Party. 

A party's son having no possession or title is 
Hot bound by order against his father. [P 104 C 1] 

Syed Hasan Imam, C. C. Das, L. M. 
Ganguli and N. C. Ghosh for Appellants. 

B. N. M itter, Naresh Chandra Sinha 
and B. J9. Gh osh for Respondents. 

Ro88, J: The plaintiffs are the owners 
of 12 annas 7 gandas share in four taluks : 
Jamjuri, Nagori, Chhota Ashna and Bara 
Ashna in fcargannah Kundahit Kareya in 
the Santhal Pargannas. They allege that 
the principal defendants took the settle- 
ment of these taluks from their predeces- 
sors at an annual rental of Rs. 706 (sikka.) 
They themselves, being the zamindars, 
have all the sub-soil rights in the said 
taluks and the defendants have no right 



to the sub-soil or to the minerals. In 1912 
the plaintiffs brought a suit for a declara* 
tion of their title to the minerals, but this 
suit was dismissed by the Subordinate 
Judge and on appeal, by the High Court 
on the ground that the Specific Relief Act 
did not extend to the Santhal Pargannas 
and on the ground that as no overt act 
was alleged against the defendants the 
plaintiffs were entitled to no relief. There- 
after, in June 1917, the defendants pre- 
vented the plaintiffs' agent from boring 
for minerals. They, therefore, claim a 
declaration of their right to the sub-soil 
and pray for a permanent injunction and 
damages. 

The defence was that there had been a 
proceeding under S. 145 of the Criminal. P. 
C,, regarding the right to the sub-soil of the 
disputed taluks which was decided against 
the plaintiffs and, as the present suit was 
not brought within three years of the 
decision in that case, it was barred by 
limitation. The defendants claimed that 
the mineral rights belonged to them. They 
alleged that Nagori and Jamjuri consist- 
ing of 60 mouzas formed ghatwali tenures 
belonging to the predecessors of their an- 
cestor Mahadeo Sadhu, and that Chhota 
Ashna and Bara Ashna consisting of 35 
mouzas formed ghatwali mouzas belonging 
to Ratan Singh and Gobinda Singh who, 
however, abandoned them, whereupon they 
were settled with Mahadeo Sadhu by 
Raja Bahadur Uz-Zaman Khan on the 15th 
of Baisakh 1189 at a rental of Rs. 706 
(sikka) by a sanad. They 'claimed that 
under this sanad, as well as under the legal 
incidents of Birbhum ghatwali tenures, 
Mahadeo Sadhu had acquired a mokarrari 
mourashi istemrari and transferable inter- 
est in the said tenures with full rights in 
the surface and the sub-soil. They further 
pleaded that Raja Ram Ranjan Chakra- 
burty and Rani Padma Sundari Debi, pre- 
decessors of the plaintiffs, brought a suit 
No. 60 of 1892 for enhancement of the 
rent of the disputed taluks against the 
Defendants Nos. 1 and 2 and the father of 
Defendant No. 3, and that this suit was 
compromised in terms which admitted the 
said defendants to be entitled to all sorts 
of rights in mokarari right in respect of 
the disputed mouzas. 

Sixteen issues were framed and the Sub- 
ordinate Judge recorded evidence on all the 
issues. But he decided only the twelth 
issue "was there any decision under S. 145 
of the Criminal. P. C. of the disputed 



104 Patna 



SATYA NIBANJAN v. SUSHILA (Boss, J.) 



1926 



mouza and is the suit barred by limi- 
tation ?" He held that the suit was barred 
and, therefore, dismissed it. The plaintiffs 
appealed to the High Court which, with- 
out deciding the issue of limitation, re* 
manded the case for a decision of the 
other issues. The remaining issues have 
now been decided in favour of the plain- 
tiffs ; except tho issue on damages but as 
they failed on the issue of limitation, their 
suit was dismissed and they have appealed. 
(The judgment here dealt with the 
evidence about the existence of an order 
under 8. 145 Or. P. C. and continued.) 
Even if there had been a judgment of this 
kind it could have no effect in barring the 
present suit because the first party to the 
proceedings was the present plaintiff who 
at that time had neither title nor pos- 
session because his father was alive and was 
the owner and possessor of the estate : 
Babajirao Gambhir Singh v. Laxmandas 
Guru Baghunath Das (l) and Bolai Chand 
Ghosal v. Samiruddin Mondal (2). I am 
unable to believe that Ex. J. is a genuine 
document or that there was a proceeding 
or a decision under S. 145 of the Criminal 
P. C. J, therefore, hold that the suit is 
not barred by limitation on this ground. 

It was further contended, however, that 
the suit is barred by six years' limitation 
because the cause of action for a declara- 
tory decree was alleged in the suit of 
1912 to have arisen in 1317, that is, 1910, 
whereas the present suit was not brought 
until the 3rd of December 1917. Similarly 
it is argued that the limitation for an in- 
junction is six years and that this relief is 
also barred. But the suit of 1912 was 
dismissed on the ground that there was no 
overt act on the part of the defendants and, 
therefore, no cause of action. The present 
suit is for an injunction on a declaration 
of the plaintiff's title and the overt act 
which was alleged took place within six, 
months of the filing of the suit. The suit 
is, therefore, not barred by limitation on 
this ground. The appeal of the plaintiffs 
must' therefore, succeed unless the objec- 
tions by the defendants result in the dis- 
missal of the suit on the merits. 

I shall now deal with these objections. 

As already stated, the first title which 
the defendants set up is the title by the 
sanad granted by Eaja Bahadur Uz~Zaman 
Khan (Ex. 1). This is a short document 

(1) (1904] 28 Bom. 215=5 Bom. L. R, 932. 

(2) [1892] 19 Cal. 646, 



which purports to settle with Buplal 
Sadhu, son of Mahadeo Sadhu, as an an- 
cient ghatwali, mokarari taluks Jarnjuri, 
Nagori Ashna Chota and Bar a within 
Tappa Kundahit Kareya the jama of the 
95 mouzas being Rs. 706 (sikka) annually. 
It declares that the grantee and his heirs 
have every right to remain in possession 
of the said taluks and mouzas including 
hills and mountains, jungles and pits, cul- 
tivated and waste lands of the entire 
mouzas above and below (zer-oo-bala) the 
taluks with all rights. The document i& 
dated the 15th of Baisakh 1189 and is in 
the Persian language. The signature is 
illegible but it bears a seal with the name 
of Bahadur Uz-Zaman Khan. The learned 
advocate for the defendants relies on this 
document, The learned counsel for the 
plaintiffs contends that the document is a 
forgery, both on the internal evidence and 
on the fact that in a long course of litiga- 
tion the document was never produced 
when its production was to have been 
expected. (The judgment then dealt with . 
evidence indetail and proceeded). The con- 
clusion seems to me to be inevitable that 
this document is not document upon which 
any Court can act. I hold, therefore, that 
the defendants have failed to establish 
their title to the minerals of the taluks in 
suit by express grant. 

The second title relied upon by the de- 
fendants is that the lands in suit are a. 
Birbhum ghatwali. There are numerous 
references in the judgments in the earlier 
litigation about this property, which, have 
been referred to above, to its being a ghat- 
wali. Thus in Ex. L the District Judge 
held that the mahals were ghatwali mah~ 
als. The provincial Court at Murshidabad 
held that the lands had not been proved 
to be ghatwali, but the Sadar Dewani 
Adalat in view of the respondents' admis- 
sion of the appellants' right to the posses- 
sion of the lands the ghatwali taluks in- 
dispute, on condition of payment, of the- 
actual jama, ordered that the appellants 
should be put in possession of these lands 
and should perform the ghatwali duties.. 
So in Ex. M the 'provincial Court upheld 
the decision of the District Judge that the 
defendants should^ on paymenjk of the 
Annual jama, perform the duties of ghat- 
wali. In Ex. N the following passage 
occurs in the judgment of Eobertson, J.,. 
which eventually prevailed " Though the 
disputed mouzas are not the ghatwali 
mahals settled by the Government under 



1926 



SATYA NIBANJAN v. SUSHILA (Boss, J.) 



Pataa 105 



Regulation XXIX of 1814 and it appears 
that the settlement of those was not made 
by the Government servant, it seems that 
before the Settlement Tappa Khon- 
dahit Kareya which includes the disputed 
mauzas having been sold by auction the 
Government servant had nothing to 'do 
with the question of the ghatwali affairs 
thereof. But it is evident from the exis- 
ting papers especially from the criminal 
Court rubakaris and parwanas produced 
by the appellants that according to the 
rules and custom the predecessors of the 
respondents' father and the respondents 
with their own employees had been super- 
vising the ghatwali duties and performing 
the police duties and they are bound to 
guard the paths and thoroughfares and res- 
ponsible for occurrences and liable to 
damages on account of stolen property like 
the ghatwal of the mahals settled by the 
Government". Stockwill, J., in his judg- 
ment, pointed out that the mahal was not 
a ghatwali mahal "as described in Regula- 
tion XXIX of 1814 and was not settled 
along with other ghatwali elakas, from 
the copy of the rubakari of the Judge of 
Zila Birbhum and the copy of the ruba- 
kari of the Collector, dated the 15th 
August 1834 which are received in this 
Court on requisition." In Ex. P it was 
held that these mahals being ghatwali 
mahals could not be sold in auction. But 
in a later judgment (Ex. Q) it wes decided 
according to the decision of the High 
Court that the second class of ghatwalis 
could be sold in auction. These classes of 
ghatwalis were defined in that judgment 
as first the ghatwali right mentioned in 
Regulation 29 of 1814, the rent whereof is 
paid direct to Government but in spite of 
the same it is considered to be a part of 
the zamindari of Birbhum, and they pay a 
portion of their fixed rent to the Raja of 
Birbhum. The second class of ghatwalis 
at first belonged to the first class ghat- 
walis, L e., those who were in possession 
in the said manner in that right on con- 
dition of service but they instead of pay- 
ing rent to the officers of Government pay 
rent to tha zamindar. The third class of 
ghatwalis are like chakran and chauki- 
dari lands find they hold possession of the 
same on condition of service." The argu-' 
ment is that although the lands in suit 
may not be a Birbhum ghatwali within 
the meaning of Regulation XXIX of 1814 
yet that Regulation did not alter the 
status of the ghatwalis. All these ghat* 



walis had their origin in the same 
circumstances and all Birbhum ghat- 
wals as such had a right to the mine- 
rals. Alternatively it is argued that if 
this is not shown yet, the Legislature in 
Act V of 1859, which was an exposition 
of the law as it stood, acknowledged that 
the ghatwalis under Regulation XXIX 
had the mineral rights and there is no 
ground for distinction between the first 
and the second classes. Reliance was 
also placed on the record of rights of 
Bara Ashna (Ex. 27), Chhota Ashna (Ex. 

28), Jamjuri (Ex. 19) and Nagori (Ex. 
30) where the names of the Sadhus are 
shown as maurashi mokarraridars in 
Part I which deals with proprietary 
rights and duties. Clause 10 of Part I 
states that * The proprietor shall enjoy 
all the rights and shall perform all the 
duties of a proprietor according to the 
customary or enacted laws locally in 
force, except as restricted by the record 
of rights." S. 12 of Regulation III of 
1872 gives the Settlement Officer power 
to enquire into and decide and record 
the rights of zamindars and other pro- 
prietors, and also any other landed rights 
' to which by the law and custom of the 
country any person may have local or 
equitable claim. S. 25 makes the record 
after a period of six months from the 
date of publication conclusive proof of 
the rights and customs therein recorded. 
Mr. McPherson in para. 88 of his Set- 
tlement Report expressly refers to mine- 
ral rights as being also covered by Part 
I, S. 10. The;learned Subordinate 
Judge has relied upon the record of 
rights as showing the defendants to be 
maurashi mokarraridars and has inferred 
from this that they were not ghatwalis. 
This argument is unsound, because a per- 
son may be a maurashi mokarraridar 
and also a ghatwal, as for instance in the 
Handwe case [Keshobati Kumari v. 
Satya Niranjan Cliakraberty (3) and 
Kumar Satya Narain Singh v. Raja 
Satya Niranjan (4)] . But the argument 
for the respondents, that because^hey are 
recorded in Part I as mokarraridars and 
Cl. 10 declares that the proprietors shall 
enjoy all the rights of a proprietor (which 
by implication include mineral rights), 
therefore they have the mineral rights 
appears to me inconclusive. Both the 
proprietors and the mokarraridars are 

(8) [1918] P. H. 0. 0. 80fc 

(4) A. I. B. 1994 P. 0. 5. 



106 Patna 



SATYA NIRANJAN v. SUSHILA (Boss, J.) 



1926 



recorded in this part and there is no 
reason why the mineral rights would 
belong to the mokarraridars and not to 
the proprietors ; it is not suggested that 
they helong to hoth and as they are not 
expressly recorded a<* belonging to the 
mokarraridars, the question as between 
the proprietors and the mokarraridars 
must be decided independently of the 
record of rights, vl take it then as 
established that these lands are ghat- 
walis which are not within Kegulation 
XXIX of 1814 both because no settle- 
ment was made with the ghatwals such 
as is referred to in the ? Kegulation and 
because it is admitted that the rent is 
paid not to the Government but to the 
zamindar. What then is the position as 
regards minerals ? Act V of 1859 applies 
only to ghatwalis within the meaning 
of the regulation and even with regard 
to them it does not confer the mineral 
rights but merely proceeds on the 
assumption (which may be erroneous) 
that they have these rights. The dis- 
tinction between a ghatwali within the 
regulation and a ghatwali which is outside 
the regulation is that in the former 
case there is no tenure between the- 
zamindar and the ghatwal who holds 
direct from the Government, while in 
the latter the tenure exists. In the for- 
mer case, while the lands of the ghatwali 
are still deemed to be within the zamin- 
dari, the zemindar no longer pays the 
Government revenue for them and has, 
therefore, no claim to the underground 
rights ; his only right connected with these 
lands is to receive the difference between 
the rent paid by the ghatwal and the 
amount of the Government revenue 
which was assessed on this part of the 
zamindari. If the Government does not 
claim the mineral rights there is no one 
to whom they can belong but the ghatwal. 
But in the latter case the zamindar still 
pays the Government revenue on these 
lands, and if the ghatwal claims the mine" 
rals he must show some transaction 
which grants him the minerals either 
expressly or by necessary implication. 
It is not suggested that in the present 
case there is any such transaction. The 
ghatwal, whatever the origin of his 
estate may have been, undoubtedly and 
admittedly holds, and for more than a 
century has held, of the zamindar and 
unless the minerals have been expressly 
or by necessary implication granted to 



him (and of this there is no evidence) 
they must be held to have been reserved. 
In short, the position of the ghatwals of 
the second class is indistinguishable from 
that of the Digwars of Jharia and what 
Lord Macnaghten said of the Digwars in 
Durga Prasliad Singh v. Pro jo Nafk Bose 
(5) is exactly applicable to the position 
of the defendants in the present case : 
" The two mauzas are within the plain- 
tiff's zamindari. Both the Courts below 
have so held. The Permanent Settlement 
was made with the zamindar of Jharia. 
No separate settlement was made with 
the Digwar of Tasra, if there was a 
Digwar of Tasra at the date of the Per- 
manent Settlement which seems more 
than doubtful. No attempt was made 
to prove that the mineral rights now in 
question were vested in the Digwar be- 
fore or at the time of the Permanent 
Settlement if the lands were then held 
on Digwari tenure. Nor is there the 
slightest evidence tending to show or to 
suggest that the zamindar ever parted 
with his mineral rights to the Digwar. 
Mineral rights were vested in the ghat- 
wals of pargannah Sarhat, in the north- 
western part of the Birbhum zamindari, 
but those ghatwals paid their rent direct 
to the Government, and in other respects 
they were in a very peculiar position, 
They were dealt with by Regulation 
XXIX of 1814. They obtained the right 
to lease the minerals by Act No. V 
of 1859. With every respect to the learn- 
ed Judges of the High Court no infer- 
ence can be drawn from Jthe circum- 
stances of their case that the Digwars 
in Manbhum had similar rights or 
powers." 

The learned Subordinate Judge has 
laid down five tests of a Birbhum ghat- 
wali tenure and has held that the 
defendants have failed by all these tests. 
It is certain that rents are not paid 
direct to Government and that the pro- 
perty has been partitioned on at least 
two occasions between members of the 
family once in 1834 when Gourhari 
Sadhu and Buplal Sadhu, tjie sons of 
Mahadeo Sadhu took respectively 6 annas 
and 10 annas shares in the taluks, and 
again in 1899 in t'ne compromise (Ex. 7) 
referred to above. I hold, therefore, that 

(5) [1912] 39 Oal. 696=39 I. A. 183=16 0. W. 
N. 482=(1912) M. W. N. 425=11 M. L. T. 
487=9 A. L. J. 462=15 0. Ifc J, 461=14 
Bom. L. B. 445=23 M. L. J. 26 (P. C.). 



1926 



SATYA NIBANJAN v. SUSHILA (Boss, J.) 



Patna 10? 



as ghatwals the defendants have no right 
to the minerals. 

The learned advocate for the defen- 
dants, however, strongly relied upon the 
third title, the petition of compromise in 
the suit of 1892 (Ex. J-l) as an acknow- 
ledgment by the plaintiff's predecessor 
that the defendants had every right and 
interest in the lands in suit. The learned 
Subordinate Judge in his judgment has 
quoted the material part of this document 
in the original Bengali and has given a 
translation. The words upon which the 
defendants rely are ' the words " the en- 
tire property detailed in the said schedule 
in all respects with all the rights and 
interests therein," and they contend that 
these words include the sub-soil rights. 
Now, in order to understand the effect of 
the compromise, it is necessary to read it 
along with the pleadings in the suit, 
The plaint (Ex. B) was simply a plaint 
in a suit for enhancement of 'rent. In 
the written statement (Ex. 10) the de- 
fendants pleaded that they were tenure- 
holders at a fixed and permanent rate 
liable to pay sikka Bs. 501 for Nagori 
and Jamjuri and sikka Bs. 205 Chhota 
Ashna and Bara Ashna and that the 
permanent nature of their tenure had 
been repeatedly admitted and acknow- 
ledged by the plaintiffs and that the 
plaintiffs' suit for enhancement of rent 
was not maintainable under S. 11 of 
Begulation III of 1872. This being the 
scope of the suit it is difficult to see how 
any admission with regard to sub-soil 
rights can be read into the document by 
which it was compromised. To read the 
document in this way is to put the plain- 
tiffs in a worse position than they would 
have been in if their suit for enhance- 
ment '.of rent haft been dismissed. No 
luestion of sub-soil rights was in issue 
or could have been in the contemplation 
of the parties. The plaintiffs simply ad- 
mitted that they could not enhance the 
rent and the construction which the 
learned advocate for the defendants seeks 
to place upon this document cannot, in 
my opinjpn, be supported. The passage 
on which reliance is placed contains the 
words " mokarrari satwa " that is " in 
"mokarrari right" and It seems to me that 
these words govern the whole clause. 
They lay down the ambit within which 
the rights are defined and the agreement 
comes to nothing more than this that the 
defendants have every possible right that 



a mokarraridar can have as such. The 
defendants read the words as admitting 
that they enjoy every sort of right but 
only as mokarraridars, that 1 is, on condition 
of payment of the reserved rent ; but to 
read the words in this way, in my opinion, 
begs the question as to what is meant 
by the mokarrari right because it 
implies that the mokarrari right imports 
the whole estate subject to the payment 
of a reserved rent. The argument is 
sought to be supported on the doctrine in 
Abdul Aziz v. Appayasami Naicker (6) 
and Lloyd v. Guibert (7), namely, that 
"the rights of the parties to a contract 
are to be judged by that law which 
they intended or rather by which 
they may justly be presumed to have 
bound themselves." It is further conten- 
ded that this is a case of contract and not 
of grant and that the cases which decide 
that where there is a mokarrari lease, the 
minerals remain in the lessor unless 
granted expressly or by necessary impli- 
cation do not apply, as the parties must 
be understood to have contracted under- 
standing that the law was that a mokar- 
raridar had the minerals. 

The first case referred to was Sriram 
Chakravarti v. Hari Narain Singh Deo 
(8) in which it was decided by the Cal- 
cutta High Court that a permanent 
tenure-holder would possess all under- 
ground rights unless there was something 
express to the contrary. The learned 
Judge in deciding that case relied upon a 
passage in Mitra's Land Law of Bengal to 
the effect that "a person holding under a 
permanent lease in which there was no 
reversion to the landlord, has the right to 
open mines," and reliance was placed 
especially upon a passage in the judg- 
ment of Pratt, J M where he said : 'But 
in this Province the grantors of such 
tenures consider that they have parted 
with all their interests in the soil and 
are entitled only to the quit-rent re- 
served." Now it is to be observed that no 
authority is given for this dictum while 
the statement in Mitra's Land Law of 
Bengal is expressly made as the opinion 
of the learned author and not as a state- 
ment of the Common Law. When this 
case came before the Judicial Committee : 

(6) [1904] 27 Mad. 131=81 1. -A. 1=8C.W.N. 
186=6 Bom. L. B. 7=8 Sar. 568 (P.O.). 

(7) [1865] 6 B. and 8, 100=1 Q, B, J15=35 
L. J. Q. B. 74=13 L.T. 602. 

<8> [1906] 33 Gal. 54=3 0. L. J. 59~10 C. W. 
N. 425. 



108 Patna 



SATYA NIBANJAN v. SUSHILA (Boss, J.) 



1926 



Kumar Hari Narayan Singh v. Sriram 
Chakravarti (9), the decision of the High 
Court was reversed, and the passage in 
Mitra's Land Law of Bengal was referred 
to but preference was given to the state- 
ment of the law in Field's Introduction 
to the Bengal Regulations, page 86, where 
he says: "The zamindar can grant leases 
either for a term or in perpetuity. He is 
entitled to rent for all land lying within 
the limits of his zamindari and the rights 
of mining, fishing and other incorporeal 
rights are included in his proprietorship." 
Their Lordships observed that : "It would 
seem, therefore, that Mr. Field did not 
regard his letting the occupancy right as 
presumptive evidence of his having parted 
with his property in the minerals," and 
they decided that the zamindar must be 
presumed to be the owner of the under- 
ground rights in the absence of any evi- 
dence that he had ever parted with them. 
Field's statement of the law was taken to 
be the correct statement of the Common 
Law on the subject. 

The next case referred to was Megh Lai 
Pandey v. Raj Kumar Thakur (10) in 
which it was held by the High Court 
that the mokarrari lease of a mauza "mai 
huk hakuk" conveyed minerals which 
were not expressly reserved. This deci- 
sion was reversed by the Judicial Com- 
mittee in Girdhari Singh v. Megh Lai 
Pandey (11), where it was held that the 
expression "mai huk hakuk" in a mokar- 
rari lease of land did not add to the true 
scope of the grant nor cause mineral 
rights to be included in it. Their Lord- 
ships observed that : "On the assumption 
that the expression means 'with all right's 
or may be properly amplified as 'with all 
right, title and interest/ such expressions 
in their Lordships' opinion do not increase 
the actual corpus of the subject affected 
by the pattah. They only give expressly 
what might otherwise quite well bo 
implied, namely, that corpus being 
once ascertained there will be carried 
with it all rights appurtenant thereto, 

(9) [1910] 87 Cal. 723-371. A. 186=11 C.L.J. 
658=7 A.L.J. 633=12 B.L.R. 495=8 M.L. 
T. 61=(1910) M.W.N. 809=20 M.L.J. 569= 
14 C.W.N. 746 (P.C.). 

(10) J1907] 84 Cal. 858=5 C.L.J. 208=11 C.W. 
N. 527. 

(11) [1918] 45 Cal. 87=44 I.A. 246=22 M.L.T. 
858=15 A.L.J. 851=88 M.L.J. 687=8 P.L. 
W. 169=26 C.L.J. 584=(1917) M.W.N. 
28222 C.W.N. 201=7 L.W. 90=20 Bom. 
UR. 64. 



including not only possession of the sub 
ject itself, but it may be of rights of 
passage, water or the like which enure to 
the subject of the pattah and may even be 
deriveable from outside properties. It 
must be borne in mind also that the es- 
ential characteristic of a . lease is that 
the subject is one which is occupied and 
enjoyed and the corpus of which does not 
in the nature of things and by reason of 
the user disappear. In order to cause 
the latter specially to arise, minerals 
must be expressly denominated, so as 
thus to permit of the idea of partial con- 
sumption of the subject leased. Their 
Lordships accordingly are of opinion that 
the words founded on do not add to the 
true scope of the grant nor cause mineral 
rights to be included within it." Simi- 
larly in Sashi Bushan Misra v. Jyoti 
Prasad Singh Deo (12), it was held that 
a talabi brahmottar grant at a fixed rent 
did not carry with it the mineral rights in 
the soil and that mineral will not be held 
to have formed part of the grant in the 
absence of express evidence to that effect. 
Finally in Raghunath, Roy Marwari v. 
Durga Prashad Singh (13) it was held that 
where a zamindar grants a tenure of land 
within his zamindari and it does not . 
clearly appear by the terms of the grant 
that the right to the minerals is included, 
the minerals do not pass to the grantee. 
The only case which was cited on behalf 
of the defendants as expressing what they 
contend to have been the Common Law 
on the subject was All Quadir Syed v. 
Jogendra Narain Roy (14), in which it 
was held that a patni lease which con- 
tained the words "darabust zamindari 
hakook" conveyed mining rights. That 
decision stands by itself and it relates to -A 
patni lease which may give rise to differ- 
ent considerations, and moreover, where- 
as in the document now under considera- 
tion the words are "haq hakuk darabust 
mokarari" the words in the patni lease 
were "darrabust zamindari hakook." Now 
while it is true that the cases above re- 
ferred to are cases on the construction of 

(12) [1917] 44 Cal. 585=44 LA. &=21 C W 

N. 877=15 A.L.J. 209=32 M.L.J. 245= 

(1917) M.W.N. 226=25 C.L.J. 265=1 P.L. 

W. 861=21 M.L.t 808=19 Bom.L.R. 416= 

6 L.W. 2 (P.O.). 
(18) [1920] 47 Cal. 95=46 LA. 158=17 A.L.J. 

597=36 M.L.J. 660=28 C.W.N. 914=26 M. 

L.T. 76=80 C.L.J. 160=21 B.L.K. 895=10 

L.W. 847 (P.C.). 
(14) {1912] 16 C.L.J. 7. 



1926 



COMMR. OF INCOME-TAX v. SHIVA PBASAD 



Patna 109 



deeds of grant, they lend no support to 
the contention that the Common Law of 
the country by which the parties to the 
present contract may be presumed to 
have bound themselves was that the 
minerals passed to the mokarraridar. If 
such was the Common Law, it should 
have been proved either by evidence or 
by numerous decisions which would have 
shown that this law was so notorious that 
nothing else could have been contempla- 
ted by the parties. The Judicial Com- 
mittee has consistently held that this is 
not the law in Bengal and there is nobh- 
ing in any of the cases to afford any 
ground for supposing that it was ever 
believed to be the law. On the contrary 
it has baen held that the law has always 
been otherwise, namely, that the mineral 
rights are in the zamindar and he is not 
divested of them by a lea.se of the land 
unless the minerals are expressly granted. 
Consequently the words in the petition 
of compromise must be construed in their 
natural sense, namely, as acknowledging 
in the defendants all the rights that a 
mokarraridar as such can have and these 
rights do nob include the right to the 
minerals. The third title set up by the 
defendants, therefore, also fails. 

There remains only one small point 
which was urged on behalf of the defen- 
dants, that as the plaintiffs are only co- 
sharers to the extent of 12 annas 7 gandas 
while one of the defendants Chain 
Kumari is nob only guardian of one of 
the Sadhus, a minor, bub is herself pro- 
prietor of a small share, the plaintiffs are 
not entitled to an injunction. Now the 
plaintiffs do not claim any injunction 
against Chain Kumari as proprietor. She 
is not said by the defendants to have 
given to them any right to work coal. If 
she herself is working coal no injunction 
is sought against her. Injunction is 
sought against strangers. The defendants 
do not allege that they have taken any 
settlement from Chain Kumari and evi- 
dently they cannot do so because this 
would go to the root of their own alleged 
title. Tkere is no substance in this ob- 
jection. 

The result, therefore, is that the appeal 
is decreed with cost's. The title of the 
plaintiffs to the sub-soil of the taluks 
Jamjuri, Nagori, Chhota Ashna and Bara 
Ashna, to the extent of their interest, is 
declared and it is further declared that 
the defendants have no right to the 



minerals of these mauzas; and it is ordered 
that an injunction do issue permanently 
restraining the defendants from working 
coal or other minerals lying on or under 
the said taluks, and from obstructing the 
plaintiffs in exercising their rights to the 
sub-soil in the said taluks. As the learn- 
ed Subordinate Judge found that no 
damage had been proved, there will be no 
decree for damages. The plaintiffs are 
entitled to their costs in both Courts. 

Das, J. I agree. 

Appeal dismissed. 



* A. I. R. 1926 Patna 109 

DAWSON MILLER, C. J., AND JWALA 
PRASAD, J 

Commissioner of Income" tax, Bihar and 
Orissa. 

v. 

Shiva Prasad Singh Opposite party. 

Misc. Judicial Case No. 136 of 1924, 
Decided on 27th April 1925, referred by 
the Commissioner of Income tax. 

% Income-tax Act (1922), S. 12 Taws payable 
under Act 3 of 1914 and Act 4 of 1920 are not to 
be defaulted from royalty In determining assessable 
income. 

The taxes payable by tha assessae under the 
Jharia Watar-supply Act (B. and 0. Act 8 of 1914) 
as well as the Bihar and Orissa Mining Sattlements 
Act (B. and O. Act 4 of 1920) cannot ba deducted 
from the royalty received by him in assessing the 
tax payable under the Income-tax Act : 34 Cal. 
257 and 6 P. L. /. 62 Appl. [P. 119, 0. 1] 

Sultan Ahmad (Govt. Advocate) for 
the Commissioner, Income 'Tax. 

N. C. Sinha and #, B. Ghosh far the 
assessee. 

STATEMENT OF THE CASE BY THE 
COMMISSIONER OF INCOME-TAX, 

The question for the decision of the 
High Court is whether an assessee who is 
assessed under S. 12 of the Income-tax 
Act, 1922, on income from "other sources" 
(consisting of royalties on coal), is entitled 
to have deducted, before the taxable 
income is determined, the cesses paid by 
him to the Jharia Water Board and the 
Mines Board of Health. 

2. The facts are undisputed : the 
assessee is a zamindar who derives consi- 
derable income from royalties on ooal ; 
under the Jharia Water-supply Act and 
the Bihar and Orisaa Mining Settlement 
Act, cesses are imposed on owners of 
mines and receivers of royalty. Under 
the Water-supply Act, the oess is assessed 



110 Patna'CoMMR* OP INCOME-TAX v. SHIVA PBASAD (Dawson Miller, C. J.) 1926 

on the actual amount of royalty received 
during the preceding calendar year, and. 
under the Mining Settlement Act, the 
demand is a percentage (at present 20 per 
cent.) of the average,of the preceding three 
years' road -cess demand. 

3. In my opinion such cesses are not 
deductible expenses under the law. Under 
H. 12 (2) of the Act, the only permissible 
allowance is any expenditure (not being 
in the nature of capital expenditure) 
incurred solely for the purpose of earning 
the income. The Patna High Court held 
in Case No. 102 of 1920 [Raja Jyoti Pra- 
md Sinyh Deo, In the matter of ({)} thafr 
road -cess could not be deducted before 
determining the assessable income from 
royalty (this was a decision under the 
Income-tax Act of 1918, but for the 
present purpose the relevant sections of 
the Income-tax Acfc of 1922 are practically 
identical). It is admitted on behalf of 
the assessee that this decision would 
apply to the present case if he were 
assessed to these local cesses on his net 
income and not on his gross income. His 
position is that if he receives Us. 5,000 
royalty and in turn pays Bs. 4,000 in 
royalty to a superior landlord he is as- 
sessed to water-cess on Ks. 5,000 and not 
on the net income of Es. 1,000. This argu- 
ment would not in any case apply to the 
cess payable to the Mines Board of Health 
which is based on the road -cess which is 
in turn calculated on the net profits. But, 
in my opinion, the argument has no vali- 
dity even as regards the water-cess. In 
the case already referred to, the Court 
held that the payment of cess (i.e., road- 
cess) is a necessary expense arising in 
connexion with the ownership of royalties 
but it is in no sense an expenditure 
incurred for any purpose incidental to the 
making of the income. This remark 
applies equally to the cesses now under 
consideration. Moreover, income-tax is 
assessed on the net income ; in the exam* 
pie given above income-tax would be 
assessed on Es. 1,000, less the expenses 
incurred }n collecting the Rs* 5,000. 

In K.M. Selected Coal Company of Man- 
bhum ; In the matter of (2), the High Court? 
of Patna held that the cesses in question 
could be legitimately deducted from the 
profits of a colliery (an assessment of a 
business under S. 10) before determining 

"li)Tr921]6Pat.LTJ. 62=2 Pat. L, T. 188= 

(1921) P. H. 0. 0. 81. 
(2) A. I. H. 19524 Patna 670. 



the assessable income. But that case 
definitely and deliberately distinguished 
from the previous one mainly on the 
ground that the local cesses were not 
rates levied after the profits had been 
ascertained. In fact the colliery business 
pays on its raisings and despatches, irres- 
pective of whether it made any profits 
at all. 

Dawson Miller, C. J. This matter 
comes before us on a case stated by the 
Commissioner of Income-tax under S. 66 
(1) of the Income-tax Act, 1922. The 
assessee in the case is the Kaja of Jharia 
who derives a considerable income as the 
owner of royalties which he receives 
under mining leases, of which he is the 
lessor in the Jharia coal-fields. The 
question for our opinion is whether in 
arriving at the taxable income derived 
from that source the assessee is entitled 
to deduct certain cesses or rates imposed 
upon the owner of such royalties under 
two local Acts, known as the Jharia 
Water-supply Act, 1914, and the Bihar 
and Orissa Mining Settlement Act, 1920. 
Under the former Act a cess is leviable 
within the area prescribed both upon the 
owners of coal mines and upon the holders 
of royalties from those mines. In the 
case of mine-owners who are themselves 
working the mines the cess is a cess on 
the annual despatches of coal and coke 
from the mine and would be payable apart 
altogether from whether any profit is- 
derived from the actual working of the 
mine. In the case of a person receiving 
royalties from mines the cess is paid 
upon the royalties received at a certain 
rate which is determined by the Board 
with the approval of the Local Govern- 
ment subject to a maximum of 5 per cent* 
on the assessed amount of royalty. Under 
the latter Act of 1920 a somewhat similar 
rate is imposed under S. 23 both upon the 
owners of mines and upon persons who 
receive any royalty, rent or fine from such 
mines. In this case the assessment is- 
based, in the case of owners of mines, on 
the actual output of their mines, and here 
again the assessment in the .case of 
owners is apart from any profit that may 
or may not be derived from the, working 
of the mine. In the" case of receivers of 
any royalty, rent or fine, their assessment 
is calculated on a percentage of road-cesa 
payable by such persons. At present the 
amount is one-fifth, or 20 per cent, of tha 
average yearly road-cess payable by s 



1926 COMMR. OP INCOMETAX v. SHIVA PRASAD (Dawson Miller, 0. J.) Pfttna 111 



Persons in respect of their royalties during 
*he last three years. 

The only question which arises for 
decision in the case is whether under 
S. 12 of the Indian Income-tax Act these 
cesses or taxes can be deducted in arriving 
at the taxable income for the purpose of 
income-tax. It was decided in the case 
of Jyoti Prasad Singh Deo (l) that in- 
come derived from royalties came within 
S. 12 of the Income-tax Act which relates 
to income derived from other sources " 
and not under S. 10 which applies to 
income under the head of " business/' 
The deductions which may be made from 
the different classes of income men- 
tioned in the Act are stated in detail in 
the different sections dealing with the 
different heads of income, and under 
S. 12 which applies to the present case it 
is provided that the tax shall be 
payable by an assessee under the head 
" other sources" in respect of income, 
profits and gains of every kind and from 
every source to which this Act applies if 
not included under any of the preceding 
heads. By 01. (2) of the section and 
this is the important part of the enact- 
ment such income, profits and gains shall 
be computed after making allowance for 
any expenditure (not being in the nature 
of capital expenditure) incurred solely for 
the purpose of making or earning such 
income, profits or gains, provided that no 
allowance shall be made on account of any 
personal expenses of the assessee. Now 
the only allowances or deductions which 
are permissible in the case of income de- 
rived from " other sources" referred to in 
S. 12 are those already mentioned in 
01. (2) of that section, namely, any 
expenditure incurred solely for the pur- 
pose of making or earnipg any income, 
profit or gain. It is contended in this case 
that the deductions leviable under the two 
Bihar and Orissa Acts to which I have re- 
ferred are expenditure incurred for the 
purpose of making or earning such income. 
The case of the K. M. Selected Coal Com- 
pany of Manbhum (2), was relied on in 
support of ijiis contention. But the rea- 
sons for that decision do not apply in this 
case. There the assessee was the lessee 
of the mines and the income taxed was 
profits derived from business. The local 
taxes as already stated in such a case are 
levied on the output or despatches apart 
from the profits of the business and 
whether a profit is made or not; must be 



taken into account in ascertaining whether 
there is a profit which is subject to 
income-tax. 

The present case appears to me to be 
governed by the principle adopted in the 
earlier case of Raja Jyoti Prasad Singh 
Deo (1). In that case this Court decided 
that in determining the taxable income 
derived from royalties, cesses payable 
under the Cess Acts, that is to say road- 
cess and public works cess, cannot be 
deducted in arriving at the taxable income 
under the head of "royalties" and the only 
question is whether there is any distinc- 
tion between the case of a road-cess and 
the case of the cesses imposed under these 
two Acts. In that case it was argued, as 
has been argued here, that the taxes 
should be deducted in order to ascertain 
what was the actual income. It was 
pointed out, however, that the cess was 
leviable upon exactly the same income as 
the income-tax itself and, following the 
case of Manindra Chandra Nandi v. 
Secretary of State (3), which held that 
income-tax could not be deducted in order 
to ascertain the amount upon which the 
road-cess was leviable, this Court held 
that, similarly, you could not deduct the 
road-cess in order to ascertain the amount 
upon which the income-tax was leviable 
because both taxes were imposed upon the 
same income ; and it was there pointed 
out that the liability to pay the road-cess 
resulted from the income having been 
made, and the payment of the cess could 
hardly be said to form a necessary part in 
the earning of the income which must 
come into existence before the liability to 
cess arises, and, although the payment of 
cess was a necessary expense arising in 
connexion with the ownership of royalty,, 
it was nevertheless in no sense an expen- 
diture incurred for any purpose incidental 
to the making of the income. No argu- 
ment has been adduced before us in this 
case which distinguishes the case of the 
cesses imposed under these Acts from the. 
ease of road cess. It seems to me that in 
both cases the cess is imposed upon exactly 
the same income and the mere faofc 
that income-tax is also imposed on that 
income is in itself no reason why the 
cesses should be deducted in order to- 
ascertain the taxable amount of income 
any more than it is why the income-tax 
should be deducted inorder to ascertain the 
amount of cess. I can see no distinction 

(3) [1907] 34 Gal, 267=5 0. L, J. 148. "** 



112 Patna TILAKDHARI v. ABDUL WAHAB (Dawson MILLER, C. J.) 



1926 



in principle between the present case and 
the case of Eaja fyoti Prasad Singh Deo 
(1) and in my opinion the Income-tax 
Commissioner arrived at a proper conclu- 
sion in the case which he stated for our 
opinion. 

Jwala Prasad, J. The royalties 
derived by the owners of lands containing 
minerals give rise to the following 
taxes : 

(1) Cess levied under the Cess Act (IX 
of 1880, 13. C.) as amended by the Bihar 
and Orissa Act I of 1916. That cess is a 
cess on the annual net profits derived 
from the mines contained within the 
zamindari in the shape of royalty ; 

(2) Cess levied under the Jharia Water- 
supply Act (Bihar and Orissa Act III of 
1914) on royalties derived from mines, 
and 

(3) A tax under the Bihar and Orissa 
Mining Settlements (Bihar and Orissa Act 
IV of 1920) assessed on the local cess 
payable by the zamindar who owns the 
lands in which the mine is situated. 

It is thus clear that the sources of the 
three taxes are the same, namely, the 
amount of royalty received by the zamin- 
dar and each of 1 * them is to be assessed 
irrespective of what is paid under the re- 
maining two Acts. Therefore the pay- 
ments made with respect to any one of 
the aforesaid taxes cannot be taken into 
account in the assessment made for the 
tax payable under the other Acts. The 
result is that the taxes payable by the 
assessee in the present case under the 
Jharia Water-supply Act as well as the 
Bihar and Orissa Mining Settlements Act 
cannot be deducted from the royalty 
received by him in assessing the tax 
payable under the Income-tax Act of 1922. 
I, therefore, agree with the order of my 
Lord the Chief Justice. 



A. I. R. 1926 Patna 112 

DAWSON MILLER, C. J., AND FOSTER, J. 

Tilakdhari Lai and another Appel- 
lants. 

v. 

Abdul Wahab Khan and others Bes- 
pondents. 

Appeal 'No. 280 of 1921, Decided on 
6th March 1925, against the original dec- 
ree of the Sub.-J., Monghyr, D/- 28th 
April 1921. 



Adverse possession CosharersMere exclusive 
possession of a portion for purposes of manage- 
ment Is no ouster 2 specific denial of other co- 
sharer's right to possession Is necessary. 

Possession of one -coshater lawfully acquired 
in the first instance may become adverse to the 
others, but mere occupation even f r>r a long period 
creates no presumption of ouster. There must be 
open and notorious acts indicating a claim to ex- 
clusive ownership in denial of the rights of the 
other cosharers before adverse possession can be- 
gin to run. The only difference batween the 
possession of a co- owner, and other cases is, that 
acts, which, if done by a stranger, would per se be 
a disseisin, are in the case of tenancies-in-com- 
mon, susceptible of explanation consistently with 
the real title ; acts of ownership are not, in ten- 
ancies-in-commou, acts of disseisin ; it depends 
upon the intent with which they are done and 
their notoriety ; the law will not presume that 
one tenant-in-common intends to oust another ; 
the facts must be notorious and the intent must 
ba established 'n 'proof : [24 C. W. N. 1057, Bef.] 
The appropriation of profits cannot be regarded 
as notice to the cosharers that their title was 
repudiated : 32 All 389, Kef. [P. 116, C. 2] 

P. C. Manuk, L. K. Jha and S. M. 
Nairn for Appellants. 

Sultan Ahmad , N. N. Sen and P. K. 
Mukharji for Eespondents. 

Dawson Miller, C. J. The appel- 
lants in this case instituted a suit for 
partition of an estate comprising four 
mouzas and bearing Tauzi No. 4920 on 
the revenue roll of the' Collector of Mon- 
ghyr. The appellants are admittedly 
entitled to a share in the estate amount- 
ing to a fraction over 7 annas of the 
whole. The defendant first party, Abdul 
Wahab Khan who alone has actively resis- 
ted the claim for partition, and who may 
be referred to as the respondent, is enti- 
tled to a 3-annas share whilst the remain- 
ing defendants classed as second party 
defendants are entitled amongst them to 
the remainder amounting to a fraction 
over 5 annas. 

The estate was at one time part of a 
larger mahal but more than forty years 
ago, at some date not definitely specified, 
it was formed into a separate revenue 
paying estate bearing the tauzi number 
already mentioned. At the earliest time 
to which the evidence relates it belonged 
to three persons named Hansraj Singh, 
Tota Bam Singh and Bhakan Singh who 
admittedly held it in coparcenary. It is 
the case of t he ! respondent that these three 
original proprietors separated and by a 
private arrangement partitioned the pro- 
perty between them by metes and bounds, 
each taking a third share but that certain 
of the uncultivated lands remained 



1926 



TiLAKDHABl v. ABDUL W AHAB (Dawson Miller, C. J.) 



Pate* 113 



Since then it is also said, that their suc- 
cessors or at least the successors of one of 
them have on more than one occasion 
made sub-divisions of their interests hy 
formal partition. If this state of affairs 
can he made out then the plaintiffs would 
not be entitled to a partition of that which 
has already been transferred into separate 
ownership. The respondent also claim* 
title by adverse possession of the land 
now in his actual possession. It is upon 
these questions that the determination of 
this appeal depends. 

The Subordinate Judge accepted the 
evidence of the respondent's witnesses as 
sufficient to prove that a partition had 
previously taken place between the origi- 
nal proprietors and considered that the 
evidence of the appellant's witnesses was 
to some extent corroborative of the res" 
pondent's ca-je. Pie also appears to have 
thought that the Record of rights finally 
published in 1903 supported the case of a 
previous partition. Ho further found that 
the respondent had acquired a title by 
adverse possession to that part of the 
estate in his actual possession. 

Th^ plaintiffs have appealed and con- 
tend' that the verbal evidence in support 
of the respondent's cine is not reliable and 
that the documentary evidence and I ho 
record of rights entirely support their 
case. 

It is necessary to brar in mind that 
it is not disputed that for a number of 
years the different proprietors have had 
separate collections of rent from the ten- 
ants on certain portions of the land which 
rents they have appropriated to their 
exclusive use without claim to participa- 
tion by other co sharers. In other por- 
tions of the land the tenants have paid 
their rent to each of the proprietors or sets 
of proprietors according to their shares in 
the estate, as wo Id he the case where 
there is joint ownership, whilst other 
lands again have remained joint being 
uncultivated, and these are recorded as 
gair-mazrua in the Record of rights, 

It is the appellants' contention that the 
estate originally consisted of three kinds 
of land, (a) kamat lands in the private and 
exclusive cultivation of the proprietors, (b) 
mal lands or 'lands in tlfe possession of 
cultivating tenants, and (c) uncultivated 
lands including dhab jhil and jungle. 
There can be no doubt that some forty and 
odd years ago or therea v out during the 
time of Hansraj Singh ard his eo-proprie- 
1926 P/15&16 



tors some arrangement was come to where" 
by possession of a portion of the lands was 
distributed between them. Whether this 
was merely for purposes of management 
or in pursuance of a formal partition of 
estate is the main question for decision. 
The appellants say that it was only the 
kamat lands that xvere thus divided and 
that the arrangement come to was for 
purposes of convenient management and 
a ^ a modusvi vcndi without any formal 
partition of the estate by metes and bounds, 
a thing not uncommon with regard to the 
proprietors' private lands in cases of joint 
ownership. The rnal or rent-paying lands 
on which tenants wore settled, according 
to the appellant's c ise, were not dealt 
with in this manner, each tenant continu- 
ing to pay rent as heretofore to the pro" 
prietors jointly according to their respec- 
tive shares whilst the uncultivated jungle, 
jhil, and dhah lands also remained unappro- 
priated. The kamat lands which are 
proprietors' private lands and over which 
the acquisition of occupancy rights by 
raiyats is restricted by the provisions 
of S. 116 of the Bengal Tenancy Act, may 
in cases where they are settled but not 
from year to year or for a term of years, 
become subject to occupancy right in the 
tenant and thus lo-?e their original charac- 
ter. It is the appellants' caso, that this 
change, has in course of time, taken placo 
which partly accounts for the fact that 
rents are in some eises paid to a single 
proprietor or set of proprietors represent- 
ing the shave or interest in a share of one 
of the three original owners, whilst in 
other cases waste lands have become lit 
for cultivation and have been settled by 
one o: other of the proprietors with the 
tenants who pay rent exclusively to him. 
There is nothing to show that the rents 
so paid have ever been proportionately 
distributed between the different land- 
lords, but this, it in contended, would 
not in itself operate as an ouster ; nor 
d>es it necessarily indicate a formal 
partition. The appellants point to the 
fact that over a considerable area of the 
estate the ronts are paid to the pro- 
prietors jointly. This area, they say, 
firms the original mal lands and nega- 
tives a partition by metes and bounds, 
for had a partition taken place, such 
1 mdfi would inevitably have been divided 
a* no one ever heard of a partition which 
left undivided the lands in possession of 
cultivating tenants paying rent for their 



Hi fata* 



TAI/AKDHARI v. ABDUL WAHAB (Dawson Miller, C. J.) 1926 



They also rely 'upon the fact 
that the lands in regard to which the 
respondent has now exclusive collection 
of rents are consider ibly in excess of his 
proportionate share of 3 annas which 
could not he the case if there had been a 
rateable distribution of the property by 
metes and bounds forty years ago. 

The respondent on the other hand con- 
tends that the existing features may be 
explained by the fact that original^ a 
portion only wa^ under cultivation and 
the rest was |,arti land or dl-ab or jhil 
land uncultivated and not partitioned, 
but that this in time came to be re- 
claimed and settled with tenants by one 
or other of the proprietors on behalf of 
all, the tenants paying their rent to each 
proprietor according to bis share. Tho 
defendant's witnesses in order to demo- 
lish the plaintiffs' theory have sworn that 
there never were any kamafc lands in the 
estate at all, but the documentary evi- 
dence is conclusive on this point and 
shows tl at kamat lands exist* d and 1 ave 
retaimd their old name although their 
characteristic features have changed. 
They endeavour to explain the dispro- 
portionate si are held by the respondent 
by raying tl at he took an inferior cla^s 
of land from his tran sferrer, one of the 
original proprietors, and consequently got 
a larger area. 

Tl o present state of affairs may quite 
possibly he explained on either hypo- 
thesis. But there are, in my opinion, 
certain facts in the case which point 
strongly to the absence of any formal 
partition having taken place. If a formal 
partition into separate puttis had been 
eihcted we .should expect to lind at 
least some document to support it, but 
none has been produced. 

It is sa.d that khe^ras were prepared 
at the time of the original partition as 
well as at the subsequent partition bet- 
ween the respondent's father and Bam 
Kishun, the son of Hansraj Singh, but no 
trace of them remains. 

The respondent's estate on the death of 
of his father was under the management 
of the Court of Wards which surely 
would have preserved these valuable 
documents had any such existed. One 
witness suggests that the respondent's 
khesra was stolen by one !Nabi Buksh. 
Ho admits that although the thief was 
known no attempt was made to prosecute 
him or to recover it back. Another 



witness a Sub-Inspector of Police who was 
dismissed from the service in 1912 says 
that Nabi Buksh was prosecuted for steal* 
ing some papers from the box of Nawab 
Khan after his death. 

Such documents as there are point to a, 
conclusion favourable to the appellants. 
The respondent's title-deed of j888 by 
which his father purchased his interest- 
from Ram Kishun the son of Hansraj, one 
of the three original proprietors, al- 
though it recites the batwara partition by 
which the present estate Tauzi jNo. fc9*0 
was separated from the parent mahal 
some time earlier, makes no mention of 
any subsequent partition between the 
three original proprietors although it: 
must have happened only some ten years 
or so earliej* on the respondent's case.. 
What IS awab Khan, the father of the res- 
pondent purchased was a 3 annas share 
out of the 5 annas odd share of Rain 
Kishun and not any specific lands defined 
by metes and bounds. The deed also- 
mentions mal and kamat lards. 

In the suit brought by the Court of 
Wards on behalf of the respondent and. 
his family against certain tenants under 
S. ll) , of the Bengal Tenancy 'Act 
in 19(K for additional rent in respect of 
encroachments, the plaint states that 
amongst the proprietors there is a dis- 
tribution of tenants, a very different 
thing from partition, and that some ten- 
ants are joint among the maliks of 16 
annas. It further states that the di fen- 
dants (the tenants in that suit) have culti- 
vated baharsi and parti lands belonging,, 
not to the plaintiffs, but to the proprietors 
without their permission and prays for 
additional rent for the additional area. 
Included in the reliefs sought is a prayer 
that the plaintiffs may be held competent 
to realize the same. Thjs surely indicates 
a consciousness that the tenants, although 
paying their rents to them by the distri- 
bution, were not the tenants of land in 
their exclusive ownership, and implies 
that, apart from the, distribution arranged 
between the owners, it would be necessary 
to make the other proprietoijs plaintiffs. 
In other words it indicates an agency 
on the part of the plaintiffs in tl at 
suit, bringing thfe case within 1 the provi- 
sions of S. 188 of the Bengal Tenancy 
Act, 

Again in 19^7 Abdul Wabab Khan, fchfc 
respondent, sued one of the tenants for 
rent. In the plaint be describes himself 



TILAKDHARI v. ABDUL WAHAB (Dawson Miller, C. J.) Patna 

took settlement was the land originally 
partitioned between the three proprietors 
which was cultivable land. He admits 
that he had rent receipts, but he did not 
produce them and pretends that he does 
not know if his land is described as kamat 
in those receipts. 

The next witness Darbari says that 
there was a partition bet.ween the original 
proprietors of cultivated lands and lands 
tit for cultivation and the rest was left 
ijmal. He saw the amlas measuring tho 
lands and he heard from people that a* 
hatwara was being made. He was cutting 
grass at the time. He had given evidence 
before the Deputy Collector, but he had 
no recollection when it was put to him of 
what he said on that occasion about this 
partition. 

None of the other witnesses carry th& 
case any further. A few more particulars 
are given about the later partition bet- 
ween Nawab Khan and Ram Kishun but 
these also are far from satisfactory. There 
is not a scrap of documentary evidence to 
support it and evon if a division had been 
made between ftawab Khan and \ is ven- 
dor this would not be binding upon the 
other proprietors unless there had already 
been a partition of his vendor's share from 
that of the other proprietors. 

The witnesses are not agreed 'as to the 
respective positions of the different puttis. 
Isone of them can speak as to the position 
of the different puttis under the partition 
between the throe original proprietors. 
They contradict each other as to the posi~ 
tion of the puttis subdivided between 
ISawab Khan and Ram Kishun. They say 
that boundary marks were placed, but 
there is no longer any trace of them. They 
deny that there were any kamat lands 
which is conclusively proved to be f tlse. 
They suppress their rent receipts for no 
apparent reason, but other receipts of other 
tenants paying rents exclusively to the 
respondent were produced by the appel- 
lants and these show that their holdings 
were kamat lands. 

One of the witnesses, Dl^autal Gone, says 
that when the subsequent partition bet- 
,ween Ram Kishun and Nawab Khan took 
place in mauza Dhamara, the whole of 
the lands in that mauza were measured. 
If Ram Kishun or Hansraj, his father, 
had already separated from the other two 
and got their own putti, the measurement 
of the whole village was quite 



1926 

as a share* holding proprietor of 3 annas 
out of 16 annas and states that his collec- 
tions are separate from other cosharers, 
and he claims the whole rent as apper- 
taining to his share. Surely this was 
meaningless if there had been a partition 
and the land had been divided amongst 
the 16 annas proprietors. It must be re- 
membered that it is the respondent's case 
that whb\*e the rent is paid exclusively to 
a single proprietor, the land for which 
rent is paid is his exclusive property by 
the partition. 

Finally the record of rights also shows 
that the proprietors are all jointly inter- 
ested in the whole estate. There is only 
one khewat for them all, although they 
have in certain cases separate accounts 
with the Collector. Had there been a 
partition, this matter must have been 
brought to the notice of the Settlement 
Officers in preparing the record of rights 
finally published in 1903. and a khowat 
would have been prepared for each pro- 
prietor or set of proprietors with a sepa- 
rate denominational number but this was 
not done, 

Ip view of these documents which ap- 
pear to me to point only to one conclu- 
sion, the evidence of partition given on 
behalf of the respondent should be closely 
scrutinized. In so far as it relates to the 
parti tion .between the original proprietors, 
it is of the flimsiest character. It is spoken 
to by men who were not particularly in- 
terested in it and who took ho part in it, 
but merely saw some measurements tak- 
ing place and were told that it was a par- 
tition. 

The first witness upon this point after 
stating that it took place says that he was 
10 or 15 years old at the time and has no 
recollection at all about it. 

The next witness Dhautal Gope says he 
saw the amlas measuring the lands and 
they said that they were making a parti- 
tion. He was not present at the kacherry 
where he says the partition took place. 
He does not know which putti was given 
to which of the parties. 

The next \vitness, Bahore Das, says that 
raiyati lands and lands fit for cultivation 
were divided between the proprietors in 
his .presence. After the subsequent parti- 
tion between Ram Kishun and ISawab 
Khan he took settlement of 5 bighas from 
Nawab Khan. This land was covered over 
with jungle when he took settlement. 
This hardly looks as if that of which he 



116 Patna TILAKDHABI v. ABDUI. WAHAB (Dawson Miller, C. J.) 



1926 



unnecessary and would not have taken 
place. 

In view of the documentary evidence I 
feel quite unable to accept this class of 
evidence as reliable. The appellants' wit- 
nesses admit that the original proprietors 
separated in mess and partitioned their 
house and that there was a distribution of 
the kanmt lands for purposes of convenient 
management as frequently happens in 
fmch cases but they deny a partition by 
metes and bounds. In some instances they 
use language which, if taken apart from 
the context, might imply a partition, but 
allowance must be made for this class of 
witnesses whose language is not always 
chosen with discrimination. There can 
be no doubt as to their intention and the 
evidence recorded is the result of both 
question and answer as taken down by the 
Court. 

Upon a review of the whole of the evi- 
dence I am of opinion that no partition 
ever took place by motes and bounds bet- 
ween the proprietors. 

With regard to the plea of the respon- 
dent that he has acquired a right by ad- 
verse possession, 1 also think his case 
fails. Every cosharer has the right to 
enter upon and occupy the common pro- 
perty and this in itself does not raise any 
presumption of a denial of the rights of 
the other cosharers. Nor is possession 
in such cases adverse. All the more so is 
this the case where they all agree for 
the purposes of convenient management 
that a certain area shall be occupied by 
certain cosharers. It may be conceded, 
however, tbat possession of one co-sharer 
thus lawfully acquired in the first instance 
may become adverse to the others, but 
mere occupation oven for a long period 
creates no presumption of ouster. There 
must be open and notorious acts indicat- 
ing a claim to exclusive ownership in 
denial of the rights of the other co-sharers 
before adverse possession can begin to 
run. As stated by Mook^rjee, Acting C. J. 
in 19 in Balaram Guria v. Shyama 
Cliaran MondaJ (l), "The law will never 
construe a possession tortious, unless 
Irom necessity ; on the other hand it will 
consider every possession lawful, the com- 
mencement and continuance of which is 
not proved to be wrongful; and this upon 
the plain principle, that every man shall 
be presumed to act in obedience to his 

(1) [1921J 24 C W. N. 1057-33 C.L.J. 344. 



duty, until the contrary appears. Ir 
other words, the only difference betweer 
the possession of a co-owner, and other 
cases is, that acts, which, if done by a 
stranger, would per se be a disseisin, art 
in the case of tenancies-in-common, sus- 
ceptible of explanation consistently with 
the real title ; acts of ownership are not, 
in tenancies-in-common, acts of disseisin; 
it depends upon the intent with which 
they are done ard their notoriety ; the 
law will not presume that one tenant-in- 
common intends to oust another ; the 
facts must be notorious and the intent 
must be established in proof." In that! 
case two out of the four co-tenants had 
been in possession for fifty years paying 
rent and taking the profits. It was held 
that the two absentee co tenants had not 
lost their interest by adverse possession. 
Whether the principles enunciated were 
correctly applied to the facts of that case 
is immaterial. The principles referred to 
appear to me incontestable. In the present 
case I can find nothing in the evidence 
to indicate an ouster or even an intention 
on the part of the respondent or his 
predecessors to assert openly ard clearly 
a hostile title. The respondent's title- 
deed by which he purcha-ed what would 
appear to be an undivided share in the 
estate and his suits against the tenants 
which indicated a claim to collect rents 
us agent of all the proprietors poirts 
strongly in the opposite direction, ai d the 
Kecord of Eights of 1903, which shows at 
the most a separate collection from cer- 
tain of the tenants is not only consistent 
with the appellants' case but seems 
to me to prove conclusively that the co- 
sharers at that time at least were joint 
proprietors of every portion of the estate 
as indicated in the khewat. The only 
fact which stands out in favour of the 
respondent on this part of the case is the 
failure to distribute the rents collected by 
him in excess of his share and the appro- 
priation of the proceeds of the sale under 
the Land Acquisition Act. This may bar 
the appellants' right to their share in 
those profits ard proceeds 'beyond the 
limitation period but it cannot, in my 
opinion, deprive them of their proprietary 
rights. "The appropriation of profits can- 
not be regarded as notice to the co-sharers 
that their title was repudiated." [See 
per Stanley, C. J. and Banerji J., in Ear 
v. Binda (9).1 WMht I find 



12) [1910] 82 All. 889=^7 A. L. J. 298. 



TlLAKDHARI 7. ABDtTL WAHAB (Foster, J.) 



1926 

certain indications that the respondent 
considered himself a cosharer only and 
nob a separate proprietor, 1 can find noth- 
ing necessarily indicating a repudiation of 
tho rights of the other co-owners in the 
land which he now claims as his own. 

In my opinion the appeal should he 
allowed with costs to the appellants 
payable by the respondent first party, here 
and in the trial Court. 

The decree of the trial Court should be 
get aside and in lieu thereof a preliminary 
decree for partition by metes and bounds, 
of the appellants' share as stated in the 
plaint should be passed. 

Foster, J. I agree. 

This is an appeal by the plaintiffs in a 
partition suit. The plaintiffs, as part 
proprietors of Touzi Estate No. 4920 in 
the Monghyr Gollectorate, sue for the 
division of the lands between themselves 
and the defendants. The estate comprises 
four entire villages, Damhara, Hardia, 
Balkunda and Bhutauli (otherwise known 
as Malpa). In itself it was created out" 
sido the memory of the present litigation 
by a partition of Tapa Chautam into three 
parts by the Collector. Out of the numer- 
ous * parties now holding title as pro- 
prietors of this Touzi Estate No. 4920, 
only one of the defendants, Mr. Abdul 
\Vahab Khan, has seriously contested the 
case, the others praying thafc if a partition 
be made they may be given separate 
takhtas. Mr. Abdul Wahab Khan's case 
is that this estate was partitioned some 
40 years ago between the three pro- 
prietors of that time, Totaram Singh, 
Bhukhan Singh and Hansraj Singh (who 
had a son Bam Kishun Singh); and that 
these divisions have been sub divided on 
several occasions thereafter. He admits 
that there is still an undivided area with- 
in these four villages, but he accounts for 
that by saying that the lands were not 
at the time of partition fit for cultivation 
though they have in some parts subse- 
quently become cultivable. He admits 
that he is in possession of better and more 
extensive lands than the other parties 
but he ascribes that to the fact that his 
father Nawab Khan took as his divided 
portion lands which for various reasons 
were considered to be of little value, but 
which have since been improved by labour 
and physical change. He also contends 
that he hai acquired title to the lands 
which he holds in separate possession by 
adverse possession. He concedes that if 



Patna II? 

the Court thinks it proper to partition the 
said Touzi estate, the ijroal portion only 
may be partitioned. It appears that the 
pldintiffs had before this present suit 
moved the Revenue Court for a Collecto* 
rate partition,, but the application was 
rejected. We are not informed what 
were the reasons for this decision. The 
fundamental fact before us is that the 
proprietors or groups of proprietors have 
now separate collections of rent from 
specifically defined holdings of tenants 
over an area which is a considerable part 
of the four villages, the residue being joinb 
a state of affairs which has subsisted for a 
long time. The most important question in 
this case will be whether tho lands the 
rents of which are collected separately by 
tho proprietors, are held in several or con- 
current ownership ; in other words, whe- 
ther the defendant Mr. Abdul Wahab 
Khan is correct in asserting that he has 
an exclusive title in the lands the rents of 
which according to the Record of Rights 
of 1903 are paid exclusively to him. As 
T have stated already, these four villages 
belonged originally to Totaram Singh, 
Bhukhan Singh and Hansraj Singh. At 
some date, of which we are not informed, 
these three persons separated in rness and 
admittedly partitioned their dwelling 
house, i We are informed by the defendant's 
witness Darbari that Totaram died first 
then Hansraj and then Bhukhan. Now 
each one of these three persons transferred 
the wholo or part of his interest. The 
predecessor-in- interest of Mr. Abdul 
Wahab Khan was Ram Kishun Singh, son 
of Hansraj Singh, deceased. His convey* 
anco was made in 1888 to Nawab Khan, 
Abdul Wahab's father, and it passed a 
three anna* share out of 5 anna^ It gandasi 
of the whole estate. It seems to me to be| 
a fact beyond question that Hansraj Singh 
was collecting rents separately from a 
known number of holdings and that he 
was interested jointly with Totaram and 
Bhukhan in the ijmal collections and 
lands, but this conveyance of 18H8 of a 
three annas share to the defendant's 
father does not purport to be a conveyance 
by metes and bounds of any specified 
lands, or of a share within specified 
bounds. I may mention here, as I shall 
have to discuss the passage later on, that 
the property conveyed is described as "my 
whole and entire three annas pucca share 
which U a fraction of 5 annas 14 gandas 
pucca (the kuchha whereof by the parti- 



llsPatna 



TILAKDHAIU v. ABDUL WAHAB (Poster, J.) 



1926 



tion is 8 annas 16-gandas taking it to be 
16 annas) in revenue paying Mahal Malpa 
Touzi No. 49 ,0." The other parties in- 
cluding the plaintiffs trace their title to 
one or other of these three persons To- 
taram, Hansraj and Bhukhan. Bam 
Kishun'* remaining -annas ll-gindas is 
now owned by two ladies. Looking at the 
Becord of Rights of 1903 we see that 
Nawah Kuan's son, then under the Court 
of Wards of estate Batan, had separate 
collection of the rents of many holdings 
as well as joint interest in the ijmal lands, 
and the general evidence seems to prove 
that Ram Kishun Singh and Isawab had 
sometime subsequent to the purchase of 
1R8R, for purposes of collection, distribut- 
ed tenant^ between themselves. 

So the two main issues in the case were 
whether there had been a previous parti- 
tion, so as to debar in whole or part the 
plaintiffs from suing in the present suit, 
tind whether the contesting defendant can 
rnako out a separate title by adverse poses- 
si on. The suit \vas tried by the Sub- 
ordinate Judge of Monghyr. He hold that 
the defendant bad proved the previous 
partitions which he alleged, and lie also 
held tl^at the defendant has been in 
udvorse possession of tho lands in his 
separate possession through his own 
tenants for over 30 yoa s openly and in 
denial of the rights of his cosharer. He 
did not consider that the plaintiff would 
be entitled to partition tho lands which 
were still in joint possession when he had 
sued for partition of the whole estate. He 
therefore, dismissed the suit. Tho plain- 
tiffs appeal. 

I shall first consider the question whe- 
ther there was a partition between 
Hansraj Singh and his two cosharers, some 
forty years ago, as alleged There is, so 
far as I can find, no document exhibited 
which clearly points to such a partition. 
On the side of the plaintiffs the cadastral 
maps aro put forward as showing, when 
eompiml with the Settlement Khatian of 
1903, that the holdings from which 
separate collections of rent are made do 
not lie in three compact blocks. For in- 
stance, the red plots, those in which the 
contesting defendant has sej)arate col- 
lections are in many cases isolated and? 
soattrred ; and so with the other co- 
sharers' plots. In such circumstances, 
there would be a great chance of confusion, 
so it is surprising to find that this defen- 
dant's title deed of 1888 is a mere trans- 



fer of a share in the village and not of 
lands denned by metes and bounds. At least 
the vendor Bam Kishun would have been 
expected to define the boundaries of his 
own patti of 5 annas 14 gandas. When the 
vendor was making assurance of title he 
would surely not, if he was owner of a 
separated portion of the mahal, have 
averred that no settlement at reduced 
rent had been executed in favour of any 
person in the whole mahal, and under- 
taken personal liability for any such sub- 
sequently discovered. No doubt there is 
the mention of pucca and kutcha shares 
by partition, but this fact must be taken, 
for its explanation, in conjunction with 
the whole expression of the document as 
well as other facts. In Ex. X, the plaint 
in a proceeding of 1903 under S. 105 of 
the Bengal Tenancy Act, the plaintiff 
(this very defendant) suing alone asserted 
that there is distribution of tenants 
amongst the proprietors, and a particular 
proprietor realizes independently the rent 
of a particular tenant. He does not 
assert anything more than actual collec- 
tion of rent and makes no mention of a 
partition ol the mahal. In fact he claims 
that the tenants are liable to pay rent for 
the encroachments made upon lands be- 
longing to tho proprietors without their 
permission. So there is a distribution of 
tenants and no more, a common enough 
phenomenon in large estates held in 
temmcy-in -common. Such a distribution 
was undoubtedly made two years or so 
after the conveyance of 1888, between 
Earn Kishun Singh and Nawab Khan, and 
no doubt the distribution was formulated 
upon the kacha shares, JNawab Khan 
getting 8 annas 16 gandas and Raj Kishun 
Singh 7 annas 4 gandas of the total rental 
of the tenants under Ram Kishun *s 
separate collection. It has been shown 
that the plaintiff's purchases of shares in 
the village (1904 to 1900 Exs. 2, 8, 5, 7) 
were similar to that of the contesting 
defendant in this respect, that there was 
no specification of separated lands within 
the mahal. Nor is any one of the very 
numerous conveyances that t must have 
taken place, considerably increasing the 
original number of 3 cosharers, produced 
to show a statb of several ownership. 
There are in the khewat of 1903 twenty 
cosharers, with nine separate revenue ac- 
counts. In 1917 Mr. Abdul Wahab Khan 
alore sued tenants for arrears of rent, 
alleging separate collection of rents from 



1926 



TlLAKDHARI V. ABDTO WAHAB (Foster, J.) 



the tenant defendants. This is equivocal, 
it does not necessarily assert separate 
ownership. We do not know what were 
the results of these suits. We do know 
that, a few months after the institution 
of these suits, this defendant put in his 
objection in the Collectorate partition 
-case that preceded the present suit, al- 
leging the existence of divided pattis, 
(Ex. 35). So the existing question was 
then sub judicc. 

As regards the question whether the 
separate collection of rents is to be attri- 
buted to a separation by partition of the 
shares of the proprietors, there is an im- 
portant matter which calls for notice. The 
plaintiffs assert in the plaint that the 
bakasht lands in the village are the pro- 
perty of the proprietors, but are not held 
in due proportion to the shares of the 
proprietors. The contesting defendant in 
his written statement asserted that the 
lands of which separate collections are re- 
corded in the Record of Eights are not 
kamat lands. The description of the land? 
may have arisen as an issue in the case 
under the Estates Partition Act. Certain- 
ly 8. 77 indicates in the Explanation that 
kamat lands though held severally shall 
not be deemed to be lands held in several- 
ty as representing several interests ; and 
that the private arrangement which is to 
give a right to preference of a particular 
proprietor in a partition in respect of 
certain lands refers only to those lands 
held on a bona tide division of lands 
held by tenants. Now, we know 
th-it frequently the possession of 
karaat lands, the private and common pro- 
perty of the landlords, is allotted without 
reference to the shares, One landlord 
may be an absentee ; bis farm servants, 
ploughs and bullocks are not in the vil- 
lage, and it is not worth his while to put 
them there. If lands are waste but re- 
claimable, his co-sharers, unless and until 
they become openly hostile to his title, 
will not, by reclaiming the lands (an 
ordinary process in estate management^, 
be able to assert adverse pos session. This 
is, so far as I can judge, the reason why 
the Estates Partition Act excludes prefer- 
ential cUims in respect of landlords' pri- 
vate lands*. * 

The plaintiffs' witnesses all describe as 
kamat the lands of which the collection 
of rents is several. Tbe defendants' wit- 
nesses refuse to admit the existence of 
.kamat. The Record of Bights (1908) 



make no mention of kamat, or its anti* 
thesis, mai ; it makes no distinction bet A 
ween lands belonging to the proprietors 
personally and lands in the raiyati stock. 
In fact it implies that there is no subsist- 
ing kamat, because it states uniformly 
that the tenants have occupancy (kaimi) 
rights. I refer to S. 116 of the Bengal 
Tenancy Act. 

The matter is one that is not only his- 
torically important. If, forty years ago, 
Totaram Singh and his two co sharers 
held a large area of kamat, a considerable 
part of which had to be reclaimed, they 
might for convenience of management, but 
not necessarily for severance of title* 
divide it up, If by subsequent settlements 
with raiyats the landlords' title to these 
kamat lands came to be diminished by the 
intrusion of occupancy rights, the lands 
might still be, in the mouths of laymen, 
such as the villagers who have given evi- 
dence, described, with an eye to their 
origin, as kamat ; whereas the Record 
of Rights could never give room to 
such an incongruity. But if the lands 
\vere in their origin kamats we have an 
explanation of the long-standing distri- 
bution of management. 

1 find conclusive documentary -evidence 
that there were originally extensive 
kimat lands, largely waste, increasingly 
reclaimablo, in these four mouzas, and 
that they were held in separate possession 
by the co sharers. The defendant's and 
the plaintiffs' title-deeds mention ksimat. 
The defendants' plaint of 1903 mentions 
land " belonging to proprietors." The 
certificates under the Public Demands 
Recovery Act, 1901, specify kamat lands. 
Going on through the documents in Part 
III, I could multiply instances of the 
existence of kamat. Mai is mentioned on 
page 84. My finding is that there is a 
very considerable area of these four vil<- 
lages which is clearly ancient kamat, but 
now obsolete as such, owing to the accrual 
of raiyati 'rights Unequal possession of 
such karcut lands can, in ordinary experi- 
ence, be expected in India. 

Now, let us consider more particularly 
the conditions of this mahal of four vil- 
lages. Admittedly there has always been 
a considerable area 'uncultivated but re- 
claimable. The total area of the four 
villages is very large, and when there is a 
large proportion of kamat, one can under- 
stand that the retention of separate .rent 
collecting and managing staffs by the varr 



ISOPatn* 



TILAKDHABI v. ABDUL WAHAB (Poster, J.) 



1926 



ous proprietors might be necessary under 
tenancy -in-common, just as much as under 
several ownership. Another thing to re- 
memher is that here we have not a case 
of exclusive possession. The cosharers 
are receiving some of the rents separately ; 
hut that does not prima facie ir.dicate any 
denial of title. But in fact, wl en all the 
co harers have been, so to speak, sitting 
at the same table since they came into 
possession, consuming the profits for so 
many yearn, I do not see how the Court 
can deem the condition of the property 
to have altered by course of law. In all 
Huch cases as this where one tenant in 
common gathers more from the common 
property than what he is entitled to keep, 
the legal conclusion is only that the co- 
sharers who have suffered by this tem- 
porary exclusion can sue for accounts ; 
there is no necessary corclusion of hostile 
possession. The khewat of the He cord of 
Eights of Bhutan! i (1903) is exhibited in 
full. It contains ono serial number for the 
score or so of cosharers. This inticates 
that each of these cosharers has an inter- 
est in every part of the village. I do not 
see how it can ho construed otherwise. 
R. 48 of the Rules under the Bengal Ten- 
ancy Act (which have the force of law) 
prescribes that the khewat shall show 
" the character and extent of propric tary 
interest." Jn the Survey Manual there are 
also some Board's Rules which in tl cm* 
selves are not very clearly expressed, have 
not the forco of law, and are intended as 
general instructions. \\ e do not know what 
particular rules were adopted in this 
Monghyr Settlement. But in view of R. 48, 
arid in viow of the fact that the- character 
and extent of separation in proprietary 
interest is usually shown by serial numera- 
tion, it seems reasonable- to hold that 
the form of this khewat irdicates con- 
current ownership throughout the whole 
village. 

The defendants' oral evidence as to the 
partition has yet to be discussed. 

His case is that Hansraj and his two 
cosharers divided each of the four vil- 
lages into three pattis by way of partition, 
and that Hansraj's share amounting to 5 
annas 15 gandas separated by metes and 
bounds devolved upon his son Ram 
Kishun. Ram Kishun sold three annas 
out of this to Nawab Khan and very 
shortly afterwards made a new partition 
with the 5 annas 15 -gaud as patti. Then 
Bam Kishun sold the residue of his share 



comprised in the patti of 2 annas and odd 
and again effected partitions with the 
purchasers. About these last partitions 
the witnesses are surj risingly silent. I 
proceed to consider broadly the evidence 
as to the earlier partitions. 

The witnesses are fairly well agreed 
that Hansraj Singh's partition took place 
about 45 years ago, so we must expect 
only the elderly witnesses to be able to 
talk about it. The seventh witness for 
the defendant says that he was 10 or 15 
years of age at the time and he has no 
recollection at all of the partition. The 
eighth witness was aged at the time: 
but he cannot say which j atti was given 
to which of the three cosharers. The 
next witness is aged CO. Like most of the 
other witnesses he cannot name or de- 
scribe the Amin who did the measurement. 
He was, he says, present at the partition 
as a Jeth raiyat for eight days. One plot 
was dealt with at a time and allotted. 
Each of the three patwaris was taking 
notes. It is noticeable that nowhere in 
the- documentary evidence is there any 
copy of these notes, nor any reference to 
them. The next two witnesses, aged 8 
and (:0 respectively, were bystanders and 
repeat vague hearsay. The last witness 
on this point, I^o. Ii4, is aged 72 years. It 
is surprising that he has so little- to say 
about the partition. All that he contri- 
butes to the evidence is a statemert, 
which he shortly after withdrew, that 
the three cosharers had each his kamat 
land in his patti, and he defines kamat 
lands as lanels cultivated with the malik's 
plough and cattle. 1 am of opinion that 
this evidence does not kufltce to prove a 
fact which must have been notorious. It 
is to be remembered that these villages 
cover a very extensive area and that the 
partition would have cost, time and labour 
and money. 

The allegeel partition between Nawab 
Khan and Ram Kishun has more evidence 
than the alleged earlier one. The sever th 
witness for the defendants states that 
ISawab Khan and Ram Kishun were joint 
for one year and then had a, partition. 
The partition khesras (or lists of plots) 
were written on behali of the two parties. 
He is a tenant bf Bhutauli' just like 
defendant's \Vitness o. 12, but these two- 
men contradict each other as to the rela- 
tive positions of the two pattis. This 
witness and some other witnesses speak 
of boundary marks having been placed, 



1926 



TlLAKDHARI V. ABDUL WAHAB (Foster, J.) 



Patnai21 



which, of course, in such an intricate 
allotment of plots in an extensive area 
was advisable and ab the same time labori- 
ous ; but those boundary marks had dis- 
appeared when the survey and settlement 
commenced in 1900. The Witnesses 
Nos. 8 and 12 assert that in the course of 
this partition between Kawab Khan and 
Bam Kishun the total area of the respec- 
tive villages was measured. This is an 
astonishing rtatement, if we are to believe 
that already these villages had been 
divided by tnetes and bounds into three 
separate properties in the former parti- 
tion. Obviously if Bam Kishun had a 
separate patti it was only necessary to 
measure that patti for the purpose of 
sub-dividing it. Witness Ko. 15 makes 
an important statement that in this parti- 
tion copies of the khesras were given to 
each of the parties. The partition was 
not made in his presence. Kawab Khan's 
copy of the khesra was stolen. The defen- 
dant does not account for the non -produc- 
tion of Bam Kishun's copy, nor has Ram 
Kishun been called though he is still alive. 
As with the alleged previous partition. 
we find hearsay and indefinite evidence. 
It appears to me that this evidence of the 
alleged second partition is wholly insuffi- 
cient and unconvincing. 

Much is made by the defendant of 
the statements of the plaintiff's wife- 
nesses in their cross-examination. They 
have certainly never admitted that these 
four villages were divided by partition. 
They have admitted, and I am quite 
prepared to believe them ; for the record 
of rights and all the evidence support 
them that there were some separate 
collections by the cosharers. It appears 
from the evidence of the patwari that 
there are seven separate collections in 
these villages. As the defendants stated 
in the proceeding under S. 105 (1903) 
there has constantly been a distribution 
of tenants among the proprietors. The 
proprietors were originally three in num- 
ber, but in the course of time, as a result 
of alienations in detail, there camo to be 
seven groups of separate collections. 
There is no question that at the same 
fcime a considerable area in these villages 
remained 'ijmal under joint collection. 
Admittedly in respect of these ijmal lands 
fchere has been no exclusion of any parti- 
cular co?barer. No doubt the legal 
incidents of the old kamat have disap- 
peared, but it appears to be satisfactorily 



shown that in the time of Totaraov 
Hansraj and Bhukhan there was a large 
kamat jagir within each of these four 
villages. This would account for sepa- 
rate possession by various cosharers. It 
is a more cheap and efficient method to 
divide the administration of the com- 
mon estate than to place the entire 
management in the hands of one person* 
The practical defect of distributed admin- 
istration is t^at when the estate becomes 
more sub-divided, it is increasingly diffi- 
cult to call all the co-iharers together for 
adjustment of account, and adjustment 
can hardly he made between less than all* 
Tins unsatisfactory state of affairs may 
continue till one of the cosharers with 
a large interest takes upon himseif to 
demand a partition. 

There has been some talk in the case 
on the defendant's side of improvements 
to the property effected at the cost of 
the defendant's father Nawab Khan. It 
is curious that both in his objection peti- 
tion (Ex. S5) in the estates pa-tition case 
of 1918 aiul in the mouth of his wit- 
nesses the defendant attributes these im- 
provements solely to his father, who after 
all, died as long ago as 1891. No im- 
provements since then have been assorted. 
There is no documentary evidence of speci- 
fic improvements. The oral evidence in 
meagre. It is not quite dear from the 
witnesses' statements what niothnd 
Nawah Khan adopted in encouraging 
reclamation. The actual payments de- 
posed to, as made by Nawab Khan, aro of 
trifling amounts, where the amount in 
stated. It should be remembered that 
the defendant's explanations of the dis- 
proportionately 1 u-go area from which he 
is collecting separate rents is that hig 
father took waste lands in plenty whilst 
Bam Kishun took cultivated lands ; and 
the waste lands which were got so 
cheaply in the partition have now been 
reclaimed and become valuable. Learned 
counsel for the plaintiff has drawn up a 
tabulated statement abstracted from the 
record of rights showing a total area of 
all the mouzas of 8314 bighas 'and he 
finds from this record of rights that the 
defendant's three annas share has sepa- 
rate collection from holdings of 760 
bighas whereas the plaintiff's separate 
collection of 5 annas 15 gandas comes 
from holdings covering 51 ^ bighas. In 
such circumstances it is surprising that 
the evidence of the alleged extensive 



JITENDBA v. JASODI S\HUN (Adami, J.) 



1926 



reclamation is so meagre. It is probable 
that when the administration of the land- 
lord's estate was allotted batween the 
cosharers, the eosharer with the best 
and the strongest administration would 
get the lion's share in the steadily in- 
creasing reclamations for the reason 
that the tenants would he more disposed 
to come to him than to others for a settle- 
ment of the lands. Mr. Abdul Wahab 
Khan's estate was for a long time in the 
Court of Wards. 

Much argument has been expanded on 
tho side of the defendant in connexion 
'with the separate receipts by cosharers 
of compensation money when lands were 
acquired in 1902 for the railway* It 
appears that the revenue officials paid 
the landlords' compensation in the case 
whore lands were under separate collec- 
tion of rent to the landlord receiving the 
rent ; and in the result the plaintiffs got 
ni considerably smaller amount of money 
th in the Court of Wards, acting on behalt 
of Mr. Abdul Wahab Kh.in. I do not 
think that any deduction from this fact 
-oan be pushed very far. No doubt all 
through those years the defendant has 
bvien owing the plaintiff's their propor- 
tion ite share in his excessive re.ilizakions. 

The learned Subordinate Judge's dis- 
cussion of Issue No. 9 depends to an 
important extent on his previous finding, 
with which 1 disagree, that there had 
been a partial partition of the defendant's 
share. The separate receipt of compen- 
sation in the land acquisition proceed- 
ings is relied upon and also the record 
of rights as showing adverse possession. 
Jcinnofcfind any open exclusion of his 
cosharor's title in any act of the defen- 
dant or his father. As between co- 
sharers, something more than mere 
separate possession is needed to prove 
aid verse possession. Nowlu-re can I find 
ti'ny open repudiation of the eosharer 's 
title. The admitted fact that the record 
of rights was made peaceably without a 
dispute would show the opposite. 

There are plenty of authorities, which 
it appears to me needless to cite, for tho 
proposition that the Couro should not 
readily presume a tortious possession as 
between co-tenants ; and that the appro- 
priation of profits by one pirticular co- 
sharer cannot be reasonably regirded as 
Notice to the other cosharers that their 
title is repudiated. I may remark that 
this does not appear to me to be a case of 



long exclusive possession raising a pre- 
sumption of ouster or conveyance. Herd 
the f icts are known and the possession 
has all along been by all the coshaters 
though unequally distributed. So I dis- 
tinguish such cases as Gangadhar v. 
Par ashram (3). 

Appeal decreed. 



(3) [1905] 29 Bom. 300 7 Bom. L. R. <i52. 



* AIR 1926 PatnaI22 

ADAMI AND SEN, JJ. 

Jitmdra Natli Chattrrjer and others 
Defendants Appellants. 
v. 

Nt. J a soda tiahun and another 
Plaintiffs Respondents. 

Appeal No. 13 U of 1922, Decided on 
1st July 1925, from the appellate decree 
of the Dist. J., Bhagalpur, D/- 27th July 
1922. 

(a) 7>a*r dmnfr-netJon Contract to hold prc- 
miw for 11 years and after tha> to hold a 1 thrice 
the rent or to take frc^h wtthment is enforceable. 
Contract Act, S. 74. 

An ejectment suit was compromised. The pro- 
visions of compromise wore that up to 11 years the 
defendants \vvro to hold the premises on a rent of 
Rs 400 par yo,ir and that if the defendants wantad 
to occupy the premises after the expiry of 11 years, 
without Liking a fresh sjttlement, they would 
have to p-iv rent at Rs. 100 p. i r month. 

Held : that what the parties intended \vas thati 
if tho defe da ts wanted to occupy the premises 
after the expiry of 11 years, they could either take 
a fresh settlement or re nain i i occupation without 
a fresh settlement on a ro t of Rs. 100 pcjr month 
which the parties at that time thought would ha n 
fair rent uftur the lap.^ of 11 years and that the 
terms were not penal and therefore they were en- 
forceable : 17 C. L. J. 590, .!/>?>/. 

[P 123, C. 1 ; P. 124, C. 2.] 

^ (b) Contract Act, S. 74 Decree* whether 
on compromise or contest Doctrine of penalty 
does not apply. 

The doctrine of penalties is not applicable to 
stipulations contained in decrees, whether passed 
on compromise or oontebt : 10 Bom. 435, Bel. 
on. [P. 125, C. 1.] 

Hasan Imam, S. 37. Mitlliclc &nd S. C. 
Maztwidai for Appellants. 
. P. C. Uanuk, S. N. Palit and *N. N. Sen 
for Respondents. 

Adami, J. The plaintiffs in this case 
sued the defendants for house rent at .the 
rate of Rs. 100 per month with interest 
from January 1918 to December 1920; 



1926 



v. JASODA SAHUN (Adami, J.) 



Patna 1 23 1 



1*3 It appears that some 11 or 12 years 
previous to the suit the predrcessor of the 
plaintiffs had sued the defendants and 
sought to eject them from the premises 
which are within the Municipality of 
Bhagalpur. The suit was compromised, 
and in April 1907, a decree was passed in 
terms of the compromise. Clauses 4, 5, 7 
and 8 of the compromise included in the 
decree are k> the following effect : 

" (4) That from January 1907, to De- 
cember 1917 the defendants shall be enti- 
tled to occupy the premises mentioned in 
the plaint and pay rent at four hundred 
rupees per year (Rs. 400 per year) payable 
in four instalments of Rs. 100 each from 
January 1907 to December 1917, and the 
plaintiff shall have no right to eject the 
defendants from the premises for that 
period, namely, before December 1917. 
The defendants will, however, be at 
liberty to vacate the said premises at any 
time within the said period of 11 years on 
giving six months notice to the plaintiff. 

" (5) That if the defendants want to 
occupy the premises after the expiry of 
19^7, without taking afresh settlement, 
they shall have to pay rent at Rs. 100 per 
month. 

" (7) That when the defendants give 
up the premises, they shall be bound to 
restore the premises to the condition in 
which it was at the time it was first set- 
tled with them. 

4< (8) That the plaintiff shall he bound 
to keep the premises in good repair during 
the period of the said 11 years. 

After 1917, the defendants continued to 
occupy the premises ; they did not take a 
fresh settlement and held over until the 
date of the suit. 

The defence to the suit was that Cl. (5) 
was a covenant for renewal and the 
stipulation that the defendants would 
have to pay Rs. 100 per month, if they 
wanted to occupy the premises without 
taking a fresh settlement, was by way of 
a penalty ; they claimed the right to con- 
tinue paying rent at the rate of Rs. 400 
a year. 

.The question in the suit was whether 
01. (5) was a renewal clause and whe- 
ther the stipulation as to payment of rent 
at Rs. 100 per mdnth was by way of 
penalty. The learned Subordinate Judge 
held tbat 01. ( r> ) did rot contain a cove- 
nant for renewal of the lease, but that 
a fresh lease with fresh terms and rent 
could be taken at the expiry of the term 



of the lease. He held that the defendants 
did not execute any fresh kahuliyat, nor 
did they give notice to the appellant of 
their intention of doin^ it. He decreed 
the plaintiff s suit, 

The learned District Judge came to the 
same opinion ; he held that there was no 
covenant for renewal and that 01. (fi) 
was not , penalty clause. He allowed 
interest only from the itfth December 
19iiO, when a notice was served on the de- 
fendants by the plaintiff. 

Mr. Hasan Imam before us argues that 
01. ( >) contains a covenant for renewal 
and that the stipulation as to payment of 
a monthly rent of Rs. 100 is penal. He 
conterds that 01. (5) means that the 
defendants have the right to a renewal of 
the lease on the same terras if they do not 
want to take afreih settlement, and that 
the stipulation as to payment of the 
monthly rert of Rs. iOO is intended only 
to force them to take a fresh settlement. 
At least if his contention is that the de- 
fendants have a right to renew the lease, 
on the same terms if they do not want a 
fresh settlement, it is difficult to under- 
stand what action the penalty would be 
attached to unless it is a failure to take a 
fresh settlement. He relies on the cases 
of Guru Prasana Rlattacharji v. Madhu- 
sudan Cliowdliry (i) ; Secretary of State 
for India v. A. II. For hen (2) ; and Lani 
Mia v. Mohamed Was hi Mia 0:), with 
regard to the question of renewal. In my 
opinion, none of these three decisions 
altogether meets this case 

In the first one the real question at 
issue was with regard to the meaning of 
the words dosra bundbast, that is to say, 
whether they meant a second settlement 
on the same terms or a different settle- 
ment. The words in the lease were : " On 
the expiry of the term I shall take, a 
11 dosra bundbast ; the lease was in 
Beng.ili. It was held that, where there 
is a cove nant for renewal, if the option 
does not state the terms of the renewal, 
the new lease would be for the same pe- 
riod ard on the same terms as the original 
lease in respect of all the essential condi* 
tions thereof except as to the covenant for 
renewal itself. 

In the second case the lease provided 
that after th6 expiry of the term 
the lessor would have power to resettle 

(1) [1922] 26 C.'wTN. 901^=85 C.L.J. 87. 

(2) [1912] 16 C.L. J. 217. 

(3) [1916] 20 C.W.N. 948. 



124 Patna 



JITENDRA v. JASODA SAHUN (Adami, J.) 



1926 



the land with the lessee on a fair rent. 
It was held that the last clause 
was intended to be a covenant for re* 
newal and thab the Government was enti- 
tled only to alter the rent on renewal. 

In the third case the lease contained a 
covenant that upon the expiry of the 
term the tenant would take a fresh 
settlement and that the landlord would 
grant him sujh settlement. 

Kone of these ca*es as I have said, 
meet* the present ca^e. It is clear from 
the clauses I have cited thab the lessee 
wa* given three option*, he could either 
leave the premises ab the end of the term, 
or he could take a fresh settlement, mean- 
ing thereby a settlement on fresh terms 
a-) to rent, or he could hold on at a rent 
which was arranged to be at the rate of 
Rs. 100/-a month. 

The decree and the compromise were 
drifted in English and the meaning of a 
fresh settlement is clear. It meant that 
the parties would meet and agree to 
the terms on which the lease was to be 
renewed, The clauses taken as a 
whole show that the plaintiffs were 
indifferent whether the defendants left at 
the end of the 11 ye MM or stayed on. It 
was agreed that, if they did want to stay, 
they must either t iko a fresh settlement 
or remain on paying a rent, which the 
parties evidently agreed would he a fair 
one after the lapse of 11 years, at the rate 
of Rs. JOO/- per month. 

The case is almost exactly similar to 
the case of Ganp'it Singh v. Jasodhar 
Singh ([). There the kabuliyats stated 
that after the expiry of a term of 5 yeirs 
the defendant would cease to have any 
right to retain possession, but, in case he 
failed to execute a freih kibuliyat, the 
landlords should have power to realize 
rent at Rs. 5/- per bigha on the strength 
of the said kabuliyabs, and the defendant 
would have no objection to that. It was 
held that the plaintiffs were entitled to 
demand rent at the rate of Rs. 5/- a 
bigha and the stipulation of payment of 
rent at that rate was not a penalty by 
reason of' the non-execution of fresh 
kabuliyats. It has been sought to com- 
pare this last cited case with the case of 
Mir Abdul Azi* v, Karu (>). but the latter 
is quite a different case. *It was there 
provided that, the tenant should give up 
the Iwl on the erfpiry of the term and, if 

* (4) t 



i 0.1 *J. 690. 
(5) [1918J 18 C.LJ. 96. 



upon the expiry of the term he claimed 
a right of occupancy or caused a claim to 
be put up by any other person, he would 
be liable whilst holding over to pay a 
higher rent. It was held that the clause 
as regards the payment of higher rent 
being in the nature of a penalty was not 
enforceaMe. The penalty in that case 
was for the tenant's action in setting up 
a right of occupancy and claiming to be 
not liable to 6 j< ctment. That case too 
does not affect the question of renewal 
but only that of penalty. In my mind it 
is quite clear that what the parties 
intended was that, if the defendants 
wanted to occupy the premises after the' 
expiry of 1917, they could either tike a 
fresh settlement or remain in occupation 
without a fresh settlement on a rent of 
Rs. 100/- per month, which the pirties at 
thab time thought would be a fair rent 
after the lapse of 1 1 years. 

With regird to the question of penalty, 
it is hard to understand how the clause 
as it is framrd could be construed to 
intend a penalty. There was no obliga- 
tion on the defendants to ocsupy the 
house or to t.ike a fresh settlement and a 
penalty under S. 71 of the Contract Act" 
will only follow some breach or obliga- 
tion, There is no obligition in the 
present case. Mr. Has in Imam has relied 
on the case of Join Pitrpont Morgan v. 
Babu Eamj ir am (6) where it was held 
that, whore a lease contains a stipulation 
that the lessee shall pay mesne profits 
at an unduly high rate on failure to give 
up the land, which formed the subject 
matter of the lease, on the expiry of the 
term, the Court has power to alter the 
rate agreed upon as being in the nature 
of a penalty ; but in thab case there was 
an obligition for the tenint to leave afc 
the end of the term and the penalty 
was to cover any action of the raiyat in 
refusing to give up the land on the ground 
that he had an occupancy right. 

However, in the present case it has to- 
be remembered that 01. (5) forms part 
of a decree, and I need only refer to the- 
case Shirektili Timapa Hegda v* Mahq,- 
blya (7). It was there held that the 1 
doctrine of penilties was nob applicable 
to- stipulations contiihed in decrees. In 
that judgment Birdwood, J. cited the 
following remarks made by West, J. in 

(6) [1920] 5 P.UJ. 302~(1920) P.H.0.0. 168= 
1 P.L.T. 810. 

(7) [1866] 10 Bom. 435. 



1926 



ASHLOKE V. BODHA GANDEBt (Ross, J,) 



Pallia 125 



the case of Balprasad v. DLarni&ar 
SiMaram (8). "The principles which 
govern the enforcement of contracts and 
their modification, when justice requires 
it, do not apply to decrees which, as they 
are framed, emhody and express .such 
justice as the Court is capable of conceiv- 
ing and administering. The admission of 
a power to vary the requirements of a 
a decree once passed would introduce 
uncertainty and confusion. Ixo one's 
rights would, at any stage, be so establish- 
ed that they could be depended on, and 
the Courts would be overwhelmed with 
applications for the modification on 
equitable principles, of orders made on a 
full consideration of the cases which they 
were meant to terminate. It is obvious 
that such a stite of thing* would not be 
far removed from a judicial chaos ; and as 
ordinary decrees are thus unchangeable, 
so we think are those in which, through 
a special provision for the convenier.ee of 
parties, their own disposals of their dis- 
putes are embodied. The doctrine of 
penalties is not appliciblo to such a class 
of cises ; and those who, with their eyes 
open, have madt- alternative engagements 
|a-id invited alternative orders of the 
Court, must, if they fail to perform the 
one, perform the other, however greitly 
severe its terms may br. " 

The defendants, therefore, cannot put 
forward the doctrine of penalties in the 
present cise considering that they held 
their premises under the terms of tho 
icom promise embodied in the decree. 

"With regard to the question of interest 
which forms the subject of the cross- 
appeal, in my opinion the learned District 
Judge was quite correct in disillowing 
interest previous to the isTfch December 
1920, not because the interest should be 
reckoned only from the date of notice but 
because the increase in the rent is so 
large that I think it is only fair that the 
-defendants should not be called upon to 
pay more by way of interest. 

I would dismiss the appeal and cross- 
rappeal with costs. 

Sen, J. I agree. 

Appeal dismissed. 



(8) [1886] 10 Bom. 437 N. 



X A. I. R. 1926 Patna 125 

Ross, J. 

Ashloke Singh and others Defendants 
Appellants. 

v. 

Bodlia Ganderi Plaintiff Respon- 
dent. 

Appeal No. 91 of 1923, Decided on 8th 
July 19:^5, from the appellate decree of 
the Sub.-J., Arrah, D/- 2nd August 
1922. 

^ Transfer of Property Act, S. 3~Mango tree 
gtf'ed Intention of the gift wa< that 
donee *hould enjoy fruit The tree is immovable 
property UegMratlon Act, S. 2. 

The question whether a tree is a standing 
timber is a question cf intention. If tho intention 
is that the plaintiff should enjoy the fruit of tho 
tree a"d not cut it down as timber, then it i 
immovable pn p rty and could only be conveyed 
by a registered r strument ; 20 Mad. ft8, Pott. 
(Erirjll* h ca<t-law d hewed). [P.12G, C.I.] 

L i^slmi Narain Singh and Rarjoo 
Prasid for Appellants. 

Parmesnwar Dayal for Respondent. 

Ross, J. Tho subject-matter of this 
suit is a mar go tree. Tho plaintiff 
respondent sought a declaration of his 
right to, and recovery of possession of the 
tree which he said bad been given to him 
by ono of the proj riotors of the village 
by an unregistered and unstamped chithi, 
dated the 12th of Kartik 131"). The 
defend ints pleaded that the plaintiff had 
no right to the tree and that the chithi 
being unstamped and unregistered was not 
admissible in proof of his title. 

The learm d Munsif dismissed the suit 
on the ground that the chithi operated as 
a deed of gift r<liting to immovable 
property; that there was no evidence 
that the mar go tree was taken only as 
standing timber ; but that the posses- 
sion and enjoyment of the fruits of the 
tree by the pliintiff went to show that 
the plaintiff wanted to take an interest 
in immovable property, and that there- 
fore the ohithi ought to have been 
stamped ard registered. The chithi was 
not produced, but it was admitted that 
it was neither stamped nor registered. 
The Munsif therefore held that the plain* 
tiff had failed to establish his title to the 
tree. The learned Subordinate Judge 
reversed this decision. He held that the 
plaintiff had been in possf ssion of the 
tree from 1319 until 13*7. As the chithi 
was not produced, he was of opinion 



126 Patna 



ASHLOKE V. BODKA GANDEBI (Ross, J.) 



1926 



that the leg*! position came to this 
that the plaintiff got the tree under an 
oral gift acomptnied by delivery of pos- 
session. HH held that under the defini- 
tion* in the Transfer of Property Act and 
the Indian Registration Act " standing 
timber " is not immovable property ; 
that in this part of the country planks of 
mingo wood are often used for miking 
leaves of doors and windows and similar 
other purpotes ; and that therefore the 
tree was standing timber, and con- 
sequently there was no necessity for a 
stamped and registered instrument. He 
therefore held that the plaintiff acquired 
a go >d title by the or.il grant and decreed 
the suit. 

The question in the appeal is 
whether the mango tree is moveable 
or immovable property. The learned 
advocaoe for the appellants contended 
th it the question is a question " of 
intention. If the intention was that 
the plaintiff should enjoy the fruit of 
the tree and not cut it down as timber, 
then it was immovable property and 
could only be conveyed by a registered 
instrument. Reference wis made to S. 3 
of the Transfer of Property Act, where it 
is declared that " Imrnov tble property 
do js not include stindmg timber, grow- 
ing crops or grass " and it Wis argued 
that these three terms must be treated as 
ejuidem generis with the common idea 
of immediate severance. In Shephard 
and Brown's Commentary on the Transfer 
of Property Act, the learned commen- 
tators say : " In excepting standing 
timber, growing crops, and gra<s from 
the category of immovable property, 
regard has probably been had to the fact 
that they are all things urn illy con- 
templated as severable, or n ended to be 
severed, from the soil. W ion such 
severance is not intended, but on the 
contrary it is contemplated that the 
purchaser of the trees should derive 
some benetit from their further growth, 
it is an interest in immovable property 
that the purchaser takes. " In S - of 
the Indian Registration Act " Immov- 
able property " is defined as including 
obtain things. " but not standing timber, 
growing crops nor grais. " Rustomji in 
his Commentary on this Act says ; " If 
trees are sold with a view to the pur- 
chaser's keeping them per manor tly stand- 
ing and enjoying them by taking their 
fruits or otherwise, the sale would be a 



.sale of immovable property. The 
matter was very fully discussed in Mar- 
shall v. Green (l) where the question 
was whether a contract for the sale of 
growing timber was within the fourth 
section or the seventeenth section of the 
Statute of Frauds, that is, whether it was 
for a sale of an interest in land or of a- 
chattel. In his judgment in that case Lord 
Coleridge, C. J., said,"l find the following 
statement of the law with regard to this 
subject, which must be taken to have re- 
ceived the sanction of that learned Judge,. 
Sir Edward Vaughan William -j, in the 
notes in the last edition of Williams 
Saunders upon tl'e case of Ditppa v. Mayo* 
p. 39 ). The principle of these decisions 
appears to be this, that wherever at the 
time of the contract it is contemplated 
that the purchaser should derive a benetit 
from the further growth of the t ling sold 
from further vegetation and from the 
nutriment to be afforded by the land, the 
contract is to be considered as for an in- 
terest in land : but where the process of 
vegetation is over, or the parties agree 
that the thing sold shall be immediately 
withdrawn from the land, the land is to- 
be considered as a mere warehouse of the 
thing sold and the contract is for goods. "" 

Here the contract was that 

the trees should be got away as soon as 
possible, and they were almost immedi- 
ately cut down. Apart from any decisions 
on the subject.and as a matter of common 
sense, it would saem obvious that a sale 
of twenty- two trees to be taken away im- 
naediitely wad n )t a sale of an interest in 
land, but merely of so much timber." 
Brett J,, said in his judgment *' If tho 
thing not being fructuotis industrialis, 
is to be delivered immediately, whether 
the seller is to deliver it or the buyer is 
to enter and take it himself, then the 
buyer is to derive no benefit from the 
land, and consequently the contract is not 
for an interest in 'the land, but relates 
solely to the thing sold itself. Here the 
trees were timber trees and the purchaser 
was to t ike them immediately ; therefore 
applying the test last mentioned, the 
contract was not within the 4th section/ 1 
Grove J., said " It sterns to me r that in 
determining the question whether there 
was a contract for an interest in land, we 
must look to what the parties intended 
to contract for. In all the o*ses this ' a* 

(1) JU K. 1. 0. P. L). 36=45 L. J. 0. P. 158= 
83 L. T. 404=*4 W, B. 175. 



1926 



ASHLOKE V. BODHA GANDER! (Boss, J.) 



Pain* 127 



beep made the test. In the case of Smith 
v. S arm an (2) it was argued by Russell 
Serjt., that " a sale of crops, or trees, or 
other matters existing in a growing state 
in the land may or may not be an interest 
in land according to the nature of the 
Agreement between the parties and the 
rights which such an agreement may give, 
and that view was adopted by the Court 

in giving judgment 

Here the trees were to be cut as soon as 
possible : but even assuming that they -were 
not to be cut for a month, I think that 
the test would be whether the parties 
really looked to their deriving benefit from 
the land, or merely intended that the 
land should he in the nature of a ware" 
house for the trees during that period. 
Here the parties clearly never contem- 
plated that the purchaser should have 
anything in the nature of an interest in 
the land ; he was only to have so much 
timber, which happened to be affixed to 
the land at the time, hut was to be re' 
moved as soon as possible, and was to 
derive no benefit from the soil." The 
same view was taken in Seeni < hettiar v. 
Santli anathan Chettiar 3) by the Full 
Bench,where Collins C.J., *aid "It'has long 
been settled that an agreement for the 
sale and purchase of growing gra*s, grow- 
ing timber or underwood, or growing fruit 
not made with a view to their immediate 
severance and removal from the soil and 
delivery as chattels to the purchaser, is a 
contract for the sale of an interest in 
land." Subramania Ayyar, J. said " It 
is scarcely necessary to observe that 
thougn standing timber is, under the Re- 
gistration Act III of i877, movable pro- 
perty only, still parties entering into a 
contract with reference to sucn timber 
may expressly or by implication agree 
that the transferee of the timber may ex- 
pressly or by implication agree that 
the transferee of the timber shall en- 
joy, for a long or short period, some dis- 
tinct benefit to arise out of the land on 
which the timber grows. In a case like 
that, the contract would undoubtedly be 
not one in respect of mere moveables, but 
would operate as a transfer of an interest 
in immovable property." It is true that 
a somewtfat different View was taken in 
Krishnarao v, Babaji (4) where in a case 



very much like t the present their Lord- 
ships observed " No doubt by the term 
" timber " is meant properly such trees 
only as are fit to be used in building and 
repairing houses. A mango tree, which is- 
primarily a fruit tree, might not always 
come within the term, but in this respect 
the custom of a locality has to be consi- 
dered;" and it was held with reference to 
the local custom that a mango tree was a 
timber tree and therefore au unregistered) 
deed was admissible to prove its transfer. 

The learned advocate for the responr 
dent relied on the finding of the Subordi- 
nate Judge, that in this part of the 
country mango trees are timber, and he 
also referred to a decision of this Court in 
Second appeal No. 9 )5 of l9 2. where 
this was held to be common knowkdge. 
That, however, was a case relating to trees 
which had been cut as timber. The pre- 
sent case is a case of a conveyance of a 
growing mango .tree of which, according 
to the finding of the Subordinate Judge, 
the plaintiff continued to be in possession 
and to enjoy the fruits for a period of 
eight years In these circumstances, it 
seems to me impossible to hold that tho 
tree was conveyed as standing timbtr- 
The parties intended that the plaintiff 
should enjoy the fruits of the tree for an 
indefinite period. The immediate, or 
approximately immediate sevtrence of 
the tree from tho land was not within the 
contemplat on of the parties, as the sub- 
sequent events proved. Therefore, in my 
opinion, this tree was not sold as standing 
timber, but the transfer was a transfer of 
an interest in tl e lard. The deed of 
gift therefore, required to be stamped and 
registered and the transfer could not be 
effected by an unregistered chithi or by 
an oral gift. In my opinion, therefore the 
plaintiff had no title to this tree and the 
decision of the learned Munsif was right. 

I would, therefore, allow this appeal, 
set aside the decision of the Subordinate 
Judge and dismiss the plaintiff's suit with 
costs throughout. 

Appeal allowed. 



(2) 9 B. and C. 561=4 M. and Ky. 455=7 L. J. 

(0.8. K. B.296. 

(8) [1897] 20 Mad. 68=6 M. L. J. 281. (P. B.) 
(4) Tl900] 24 Bom. 31-1 Bom. I* . 489 



1?8 Patna 



JAGANNATH v. SHEOQOBIND (Kulwant Sahay, J.) 



1926 



A I R 1926 Patna 128 

KULWANT SAHAY, J. 

Jagannatli Sa/iwand another Defon- 
fendants Petitioners, 
v. 

SJi eoyobind Prasad Plain ti if Oppo- 
site Party. 

Civil Revision No. 66 of 192 r >. Decided 
on 5th Mty l ( J2 r >, from the decision of 
the District Munsif, Kanchi D/-3rd 
January 1925. 

Civil P. C., 0. '28, .7*. lJ'laln'i/f bound to fail 
owing fo *ubfantial defect in plaintPermission 
cannot be granted. 

The fact that upon the cast; us mado in the 
pluint the plaintiff could not succeed is ri<-> groiv d 
for all >win8 tho plaintiff to withdraw from the 
suit with liberty to bri tf afresh suit. Such 
perrnisnion can be granted only when the suit is 
bound to fail by reason of some! formal defect or 
on othor suffloi >nt tfroiridH analogous to thcsy 
provided for in Sub-01. (a). [P 12* C 2 

P. K. Mukcrji for Petitioners. 

Guru 8 f iran Prasad and Dhyan Chan 

a tor Opposite Party. 

Judgment This is an application in 
revision on behalf of the defendants 
against the order of tho Munsif of Ranchi 
passed under O. 2,'J, R. I, 01 (t>) of tho 
Civil P. granting tho plaintiff permis- 
sion to withdraw from the suit with 
liberty to institute a fresh suit in res- 
pect of the subject matter of tho suit. 

The learned Mumif has allowed the 
withdrawal on the ground that upon tho 
case as made by the plaintiff in the 
plaint the suit could not succeed. The 
cise made by the plaintiff in the plaint 
was that the prop rty in dispute was the 
property of Mt. Jarnuni, the maternal 
grandmother of the plaintiff and the 
plaintiff claimed the property as the 
assets of Mt. Jamuni claiming to be the 
heir of Mt. Jamuni. At tho hearing of 
the suit the plaintiff wanted to adduce 
evidence to show that the property be- 
longed to the husband of Mt. Jamuni and 
that the plaintiff inherited the property 
aa tbe reversionary heir of the husbar.d 
of the lady. The defendant objected to 
such evidence going in, on the ground 
that in the plaint he did not claim tbe 
property as tbe heir of Mt. Jamuni's 
hmband. The learned Munsiff says that 
unless the plaintiff was tbe heir of Mt. 
Jamuni's busband the suit would not be 
successful, because the defendants had 



produced a Will alleged to have been exe- 
cuted by Mt. Jamuni and had applied 
for Probate of the Will before the Dis- 
trict Judge, and the question WHS pending 
before the D strict Judge, He accordingly 
give the plaintiff permission to with- 
draw the suit. Now, under O. 23, R. 1, 
the Court could allow a plaintiff permis- 
sion to withdraw the suit with liberty to 
institute a fresh suit in respect of the 
same subject matter only when the suit is 
bound to fail by reason of some formal 
defect. Sub-clause (b) of 01. (2) of R. 1, 
however, gives the Court power to allow 
the withdrawal of a suit on other suffi- 
cient grounds. The other sufficient 
grounds, however, have been held by this 
Court to be grounds analogous 1 to those 
provided for in sub-Cl (a). In my 
opinion, tho Court had no jurisdiction to 
grant permission to withdraw the suit, 
because upon the case as made in the 
plaint the plaintiff was bound to fail. 
There is nothing in the plaint or in the 
order of tho Munsif from which it could 
be held that there was a formal defect or 
a defect of such a nature as would pre- 
vent the suit being properly tried. The 
fact that upon tho case as made in th'e 
plaint the plaintiff could not succeed is 
no ground for allowing tho plaintiff to 
withdraw from the suit with liberty to 
bring a fresh suit. The conditions under 
which a suit may bo allowed to be with- 
drawn with permission to bring a fresh 
suit have been discussed by this Court in 
tho cise of Male.nflra Ram v. Singi 
6i7(i). In niy opinion, the learned 
Munsif was wrong in the present case to 
allow the suit to be withdrawn with 
liberty to bring fresh suit. 

The order of the Munsif must be set 
aside, and the suit will proceed in the 
ordinary course. The petitioners are en- 
titled to their coats hearing fee one gold 
mohur. 

Order set aside. 



(1) [1918] 8 P, L. 3. 651. 



1926 



IBRAHIM V. SSHBOPRATAP {Ktttvnutt'-Satiay, J-) 



# A I R 1926 Patna 129 

, '' - .'. I ' 

ADASII jtxD JtoLWAXT SAHAY, JJ. 



., 
Appellants. '* 

' ' 



Klian, and others 



v. 



8heopratap,Narain~- Respondent, 

Appeal No. 140 of 1924, Decided on 
15th May 1925, from the original 
decree of the SuW., Satan, D/~ 29tb 
March 1924. 

(a) Limitation Act, Art. 18Z Execution appli- 
cation in continuation of previous application 
Scope of both applications mint be the same. 

In order to successfully contend that an appli - 
cation for execution should bp con sirred to be 
a continuation of the first application, it is neces- 
sary for the .decree-holder to show that the saope 
of the S2cpnd application i:* the same as that of 
the previous application. [P. 130, C. 1] 

^C (b), Execution of decree Limitation 
Objection to execution raised fact dismissed 
Appeal against the order by objector does not 
extend Uinltailon. 

The filing of t}ie appeal by objector agaija^t the 
order dismissing his objection against t)ie execu- 
tion of the decree does not operate as a bar to the 
dtecree-hplder Baking put fresh execution and, 
fchersloje, limitation for freak application begins 
from the dlate of dismissal of the objection. 

</''"' [P. 130, C, 1] 

Noorul Hussain for Appellants. 

-Tadubans Sdliay -for Respondent. 

Kulwant Sahay, J. This is an appeal 
by the decree-holder against an order of 
the Subordinate, Judge .of Saran, dated the 
29th March 1924, whereby he allowed 
the objection of the judgment-debtor and 
dismissed the application for execution, 

The decree-leakier obtained a. mortgage- 
decree on the Sffih February 1910. : By 
this decree future interest was not 
allowed. There was an appeal by the 
defendant against the mortgage decree 
and a cross-appeal was filed by the plain- 
tiffs as rejjpds the future interest. The 
appeal - was dismissed -by tUe^ C^lgu^tia 
High 'Court on the 30th July 19J4 wi$i 
costs amounting ^to Rs. '.540-8-6. -T$e 
cross-appeal of the plaintiff was - dismissed 
for default. /An application was made for 
restoration of the cross-appeal which was 
allowed and ultimately the cross appeal 
was decreed on the 16th February 1916, 
whereby the future interest was ordered 
to be addecf to the* mortage-money. The 
dferee was amended accordingly on the 
^tb^August 1917. /^^cling ..the^w^ 
of the appeal in the High Court; the 
plaintiff decree- holder assigned -his inter* 
<#t in the deoree to one Hai Gulab Chand 
1926 P/17 A 18 



reserving to himself th^ costs 
might be allowed to him in the appeal 
to the High Court. The assignee 
executed his decree an4 realized the mort- 
gage monely. The ori^in^ tfecree-hoW&i: 
applted for execution of tt*e decree lor' 
costs awarded by the High Court and for 
realization of future interest by an appli- 
cation filed on the 24th August 1918. 
This wa* registered as Execution Case 
No. 146 of 1918. Two objections were 
filed to this execution : one ; by the judg* 
ment*debtor and the other by the assignee 
of the decree. The objection of tfafc 
assignee was that under the assignment 
future interest Jfould not be realized by 
the decree-holder, but the assignee was 
entitled to the same. The objection of 
the judgment-debtor related to certain 
other matters. Both objections were 
disallowed, the objection of the assignee 
by an order of the 10th February 1919 
and that of the judgment-debtor by att w 
order dated the 12th February 1919. If 
appears that in the meantime the assignee 
had filed a formal application for execu- 
tion for realization of the future interest 
and costs. This application wais- ftlfcd on 
the 18th January 1919 arid was registered 
as Execution Case No. 9 of 1919. -Ail 
objection was filed to this execution ! lty 
the decree-holder and the applicbfcidn 
was ultimately dismissed on the ISfelt 
February 1919. ' ' ' ' 

Thrfce appeals were prefer*^ > to the 
High Court against thefce orders. . Appeal 
No: 134 of 1919 was by the jtidj^ttefct^ 
debtor arising out of the Execution 
No. 146; Appeal No. 154 of 1919 
the assignee and arose out of the 
Execution Case No. 146 and 
No. 127 of 1919 was also' by the^ i 
against fche order passed in his 'own 
cutiori Cise No. 9 6t 1919. 'Ail 
t^reeappeajw came on for hearing arid 
were di^iids^d of together by oriie ;i ju^ig* 
ment date<J'the lOth August 1920. !ttie 
result wa? that future interests were "de^ 
clared to be realizable by the assignee and 
the costs only by the original decree- 
holder. 

Tfbs application for execution out ojl 
which r the present appeal arises was fited 
on the 16th August 1929 and the prayer 
wag for the realisation of the costs by 
sal, of the remaining mortgaged pro* 
pertieia. With the application tor Vxeou- 
tion, , however, no list was .given of the 
mortgaged properties, but subaequetatlV A 



130 Patna 



MIDN ? APUR ZAMINDABY Co. v. EAM KANAC SINGH 



1926 



list; was filed setting out the properties 
which the decree-holder wanted to sell 
for realization of the costs. 

An objection was filed by the judgment- 
debtor who was the Defendant No. 2 in 
the case on the ground that the applica- 
tion was barred by limitation and that 
the decree could not be realized from 
properties other than the mortgaged pro- 
perties and the properties from which 
the decree-holder sought to realize his 
decree were not the mortgaged properties, 

This objection has been allowed by the 
Subordinate Judge and the present appeal 
has been preferred by the decree-holder 
against the ordor allowing the objection. 

As regards the questionCbf limitation, 
it is clear that, the present application 
was filed, more Uian three yoars from the 
date of tho execution which was filed on 
the 24th August 1919. It is, however, 
contended that on account of the objec- 
tions filed by the judgment-debtor and 
the assignee of the decree the decree- 
holder was prevented from taking out 
fresh execution. The obstacle which in 
any way lay in the way of the decree- 
holder was, however, removed by the dis- 
missal of the objections by the order of 
the Subordinate Judge passed on the 10th 
February 1919. After that there was no 
obstacle in the way of the decree-holder 
to take out execution of his decree. It 
is contended that the appeal to the 
High Court prevented him from 
taking out execution. The filing of the 
appeal against the order of the Subordi- 
nate Judge by the assignee of the decree 
could not in any way operate as a bar to 
the decree-holder taking out fresh 
execution. 

It is next contended that the present 
application may be considered to be a 
continuation of the first application. 
This, however, cannot be considered to be 
a continuation of the first application; it 
is necessary for the decree-holder to show 
that the scope of the present applicationis 
tho same as that of the previous applica- 
tion. This was laid down by this Court 
in Kesho Prasad Singh v. Harbana Lai 
(1). We find, however, that the present 
execution is against only one of the judg- 
ment-debtors named : Bajrang Bahadur, 
The first application for execution was 
against two judgment'debtors, namely, 
Bajrang Bahadur and S^eopratap Narain, 
(1) [1926T2~rr"L7T: 2a==(l920) P,H, O.C. 



Moreover the first execution was for the 
realization of the costs as well as for 
future interest ; the present execution 19 
for the realization of the costs only. In 
, the first execution the prayer was to pro- 
ceed against the mortgaged properties. 
In the present case it has been found that 
the properties sought to be proceeded 
against are not the mortgaged properties 
Under the circumstances it is clear that 
the present application cannot be conside- 
red to be a continuation of the first appli- 
cation. The present application is, there" 
fore, barred by limitation and cannot pro- 
ceed. 

As regards the second ground, it is 
conceded by the learned vakil for the ap- 
pellant that the decree-holder cannot pro- 
ceed against the other properties so long 
as the mortgaged properties are not 
exhausted. There is a finding that the 
present properties against which he now 
seeks to proceed are not the mortgaged 
properties, and it has not been proved that 
the mortgaged properties are not available 
for sale. 

Under the circumstances there are no 
merits in this appeal and it must be 
dismissed with costs. 

Adami, J. I agree. 

Appeal dismissed. 



109, 



#A I. R. 1926 Patna 130 

DAS AKD ADAMI, JJ. 

The Midnaprir Zamindary Co. Ltd. 
Plaintiffs Appellants. 



Ram Kanai Singh Deo and others - 
Defendants Respondents. 

Appeal "No. 30 of 1922, Decided' o^ 
10th June 1925, from the original decre e 
of the Sub-J. of Manbhum, D/- 17th 
December 1921. * ' " 

(a) Succession .Act (1805), S, 
property of ttie deceased* in S. 
property held as trustee'. 

The words " all the property of the deceased ** 
must be construed as meaning the actual property 
of the deceased, whether held by him tot his own 
benefit or for. the benefit of others : 12 #,..#. 
423, Foil. [P. 134, CU] 



includes 



1926 



MIDNAPUR ZAMINDARI Co* v. RAM KANAI SINGH (Das, J.) Patna 131 



(6) P rebate and Admn. Act, \S. 90 Conveyance 
witlwut sawtion of Court it, voidable only by 
person Interested in property. 

Ordinarily an administrator ought to obtain 
the previous permission of the Court before 
conveying the property to a third party. But a 
disposal of the property by tbe administrator in 
contravention of the above rule, is only 
voidable at the instance of any other person ' 
interested in the property. In other words, if any 
objection is to be made to the conveyance of 
trust property that objection sohuld proceed either 
from the heirs of the deceased or the heirs of the 
b^neficinrie* recognizad as such in the deed of 
declaration of trust. [P 134 C 2] 

(c) Lease Permanent lease Lessee never baring 

fjot 2^sses^ion can yet sue for ejectment or damage* 
and Injunction. 

Delivery of possession is not necessary ^for the 
completion of a permanent lease under the 
Transfer of Property Act, and lieu ce a lessee who 
never got pssssssion of the land can maintain an 
action for trespass or for injunction and damage*. 
(English late referred). [P 135 C Ij 

(d) Possession Underground rights Owner not 
working tlie mines may be still in possession. 

The mere omission of the mineral owner to do 
anything with the subject-matter of his grant 
will not be a disseisin or dispossession of him in 
favour of the surface owner. [P 135 C 2] 

^ (e) Tort Action in trespass can be based on 
constructive possession. 

Constructive possession is a sufficient foundation 
for an action in trespass. [P 135 C 2 j 

(/; Specific Relief Act, 8. 54. Plaintiff not in 
possession can still we for injunction in a proper 
case. 

A plaintiff though not in possession, is entitled 
to sue for - in junction if he- satisfies the Court 
that the injury which is apprehended will be 
either continuous or frequently repeated or very 
serious ; Wall is v. Hands, (1893) 2 C/i. 75, 
Expl [P136C Ij 

(g) Landlord and Tenant Abandonment by 
tenant Mineral rights Mere non-user is not 
enough Landlord treating lease as at an end fs 
not enough unless adverse tyassesslon for statutory 
period is proved. 

Mere nqn-usec does not amount to an abandon- 
ment of a tenancy of mineral rights nor does the 
fact that the proprietor treated the lease as 
having been surrendered o'r^abandoned in itself 
prove abandonment by the tenant. What the 
proprietor understood is of no consequence unless 
he actually took. pg^sftiDn of the demised land 
and retained possession for" the statutory 
period : Agency Co. v. Short, (1888) 13 A, C. 
793, Ref. CP 186 C 1, 2] 

(h) Landlord and Tenant Dispossession - ' of 
tenant by landlord Mere refusal to recognise 
leaze is not 'enough. 

The refusal by the landlord 'to recognize lease 
of minipg rights does not amount to dispossession 
of the lessee* What is wanted on the part of 
the proprietor is a positive ' act of dispossession so 
as to enable him to invoke the doctrine as to lapse' 
of time. [P 137 C 1] 



(1) Adverse possession Trespasser abandoning 
possession before statutory period Is over Rightful 
oicner's title is not affected. 

The rightful owner including a lessee may invoke 
the doctrine as to constructive possession. Ho 
may for a time be dispossessed ; but when the 
trespasser abandons possession before the 
statutory period is over, the rightful owner jis in 
the same position in all respects as he was before 
the intrusion took place. [P 137 C 1] 

P, C. Manul', A. Sen and S. N. Palit 
for Appellants. 

Sultan Aimed, C. C. Das, L. N. Singh, 
S. 37. MulllcJc and A". A". Sen tor 
Respondents. 

Das, J.- I think this appeal must 
succeed. The plaintiff Company claims 
the mineral rights in Perganna Barabhum 
under a permanent mokarrari lease gran- 
ted by Raja Braja Kishore Singh Deo, the 
then proprietor of the Perganna, to one 
Kenny on the 12th November 1881 ; and 
che suit out of which this appeal arisea 
was for a declaration of its title to those 
rights, for damages, and for a permanent 
injunction restraining the defendants 
from carrying on mining operations in 
the perganna. 

The present proprietor (whose estate 
is under attachment under the provision 
of &he Encumbered Estates Act) has been 
cited as Defendant t -No. 1 in the action ; 
Defendant No. 2 is the manager of the 
estate appointed under the Act. On the 
5th September 1911 the present 
proprietor granted a mining lease of the 
perganna for 999 years to Herambo Nath 
Banerji, cited as Defendant No. 3 in the 
action. Herambo, in bis turn, granted a. 
prospecting license to Guzder, tbe 5th 
defendant on the llth February 1920. 
It is admitted that Guzder is actually 
carrying on underground operations 
through 'bis agent, Clmndan Singh named 
as Defendant No. 4. Tbe suit was 
originally instituted against 'Defendants 
Nos. 1 to 4, the plaintiff not being aware 
that Chabdan Singh was tbe agent of 
Guzder. The plaint was subsequently 
amended and Guzder was added as a 
party to the suit on the 23rd November 
1920. < ' " 

The defendants contested tbe suit ou 
grounds which are common to them. The 
Subordinate Judge has given effect to 
most of these objections and has dismissed 
tbe plaintiff's suit on the following 
grounds : first, on the ground that the 



13-2 Patna MIDNAPCR ZAMINIUII Go. v. 



KVNAI SINGH (Dis, J.) 



192S 



plaintiff Company has not established its 
title to the minerals : secondly, on the 
ground that the plaintiff Company, not 
being in possession of the thing deniised, 
is incompetent to maintain an action for 
trespass and therefore for injunction ; 
thirdly, on the ground that there was, by 
operation of law, an abandoment by 
Kenny of his interest under the lease of 
1881, entitling the proprietor to enter 
into a fresh arrangement with Herambo ; 
fourthly, on the groand that the suit is 
barred by limitation ; and lastly, on the 
ground that the plaintiff Company is 
estopped from disputing the title of 
Herambo under the lease of the oth Sep- 
tember 1911. 

I will first consider the question of 
title. As I have said, the then proprietor 
of Barabhum executed a permanent 
mokarrari lease in favour of Kenny on 
the 12th November 1881. The validity 
of the lease was unsuccessfully challenged 
by the defendants in the Court} below, 
and it was not in controversy before us. 
We start then with this : that Kenny ac- 
quired a parnunent, transferable and 
heritable interest in the minerals in 
Perganna Barabhum under the lease of 
the 12th November 1881. Now it 
appears that though -the lease was taken 
by Kenny in his own name, he was in 
fact acting on behalf of himself and 11 
other persons, On the i24th February 
1882 Kenny executed what is called a 
deed of declaration of trust in which he 
declared that " he, his heirs, executors, 
administrators, representatives shall and 
will henceforth stand and he possessed 
of the said mines and minerals and all 
mining rights granted by the siid 
patta .... in trust for the said 
several persons whose names are set* forth 
in the first column of the second schedule 
hereto according to the shares and in- 
terests set opposite to their respactive 
names in the second column of the second 
schedule hereto." It is not necessary to 
give the names of the persons interested 
in the pitta of the 25th November 1881 ; 
it is sufficient to say tint Kenny had- 
three shares, out of 32 and that eleven 
other persons, whose names appear in the 
second schedule, had the remaining 
shares. 

On the 28th January 1891 a Company 
was formed called the Barabhum Co. Ltd., 
with a view " to acquire lands for the 



mining purposes and mining rights of 
all kinds in Minbhum, Singhbhum and 
Chota Nagpur and elsewhere in British 
India and in particular the mining rights 
in Perginni Barabhum acquired by one 
Nathaniel Kenny under a perpetual lease 
from Maharaja Braja Kishore Singh, dated 
the 12th November J881 and now vested 
in the said Nathaniel Kenny as trustee 
in terms of an ' indenture dated the 24th 
February 1882." On the 5th February 
1891, an agreement for sile of the pro- 
perty whjch was the subject-nutter of 
the mokarrari patta of the 25th Novem- 
ber 1881 was entered into between Bara- 
bhum CvLtd. and a number of persons 
called the vendors including all the per- 
sons who, according to the deed of declara- 
tion of trust, were interested in the patta 
of the 25th November 1881. By this 
agreement the vendors agreed to sell to 
Barabhum Co. Ltd., the underground 
rights of Perganna Birabhum for the sum 
of Rs. 32,000 which was agreed to be paid 
and satisfied by the allotment to them of 
320 shares in th<3 capital of the Company. 
It appears that these shares were allotted 
to the vendors in the proportion in which 
they were interested in the lease of the 
25th November 1881. It will be noticed 
that various persons are mentioned as 
vendors whose names did not appear in 
the deed of declaration of trust as being 
interested in the demised property ; but 
the explanation is that these persons came 
to acquire an interest by subsequent trans- 
fers. Meanwhile Kenny died in 'England 
before the legal estate C3iild be conveyed. 
He left a Will of which probate was taken 
in England. Mr. Foley, acting under in- 
structions from the English executors, and 
as their CDnstituted attorney, obtained 
Letters f Administration to the estate of 
Kenny from the Cilcutta High Court on 
the 21st November 1905 "with effect 
within the province of Bengal." On the 
29th January 1908 Foley, as the Adminis- 
trator of the estate and effects .of .Kenny 
^conveyed the property to the Company. 
9n thfe 14th July 1916, the Campiny 
transferred its interest to Billinghurst and 
oix. the 14th July 1917, Billinghurst con- 
veyed it to the plaintiff Company. 

Now there is no dispute as to. the vali* 
dity or sufficiency of ''the transactions by 
which the Barabhum Co., Ltd., conveyed 
the property to BillinghursL and Billing- 
hurst conveyed it to the plaintiff Com- 



1926 MIDNAPUR ZAMIKDARI Co. v. KAM KANAI SINGH (Das, J.) 



Pattta 133 



pany. The only question is as to the con- 
veyance of the property to Barabhum Co., 
Ltd. Now Kenny's interest in the thing 
demised being admitted, what infirmity is 
there in the title of the plaintiff Com- 
pany ? The learned Subordinate Judge 
attacks both the declaration of trust of 
the 24th February 1882, and the convey- 
ance by Foley to Barabhum Co., Ltd., on 
fche 29th January 1908. He attacks the de- 
claration of trust on the ground that 
Kenny had no authority to declare him- 
self a trustee for his co-sharers. The view 
of the learned Subordinate Judge on the 
point may be stated in his own words : 
'Under this deed Mr. Kenny constituted 
himself to be the trustee of the 11 other 
co-sharers. I do not think that he could 
constitute himself to be a trustee on be- 
half of the eleven. He could create a trust 
and make himself a trustee only in respect 
of his own property and not in respect of 
the property of others. He was therefore 
in my opinion not a trustee, but only a 
farzidar of those eleven persons in respect 
of the shares in the leasehold property." 
It is not necessary for me to say anything 
more than this that the view of the lear- 
ned Subordinate Judge cannot be suppor- 
ted for a single moment. The legal title was 
in Kenny ; bufc as between him and his co- 
sharers lie was entitled to a small share 
in the demised property. The deed itself 
states that the 11 persons, who had a be- 
neficial interest in the demised proi>erty, 
had requested Kenny to execute a decla- 
ration of trust in respect of the property. 
It was but right and proper that Kenny 
should make an open declaration to the 
effect that though the legal title was in 
him, he was holding the property on be- 
half of himself and eleven other persons. 
The learned Subordinate Judge has entirely 
misunderstood the position. It is not that 
Kenny constituted himself a trustee on 
behalf of his co- sharers, but that he was, 
by construction of law, a trustee bound to 
convey the legal title to his co-sharers, 
whenever called upon to do so. This is all 
that the declaration of Kenny amounts to. 
The learned Subordinate Judge next 
turned his attention to the agreement of 
the 5th ^ebruary 1891 and 'found that it 
was not proved *in accordance with law. 
The learned Subordinate Judge is entirely 
right when he says that it was for the 
plaintiff to prove that the twelve persons 
who were interested in the demised pro- 
perty or their representatives in interest 



actually executed this agreement. Now 
it appears that eight of these persons, re- 
presenting 11 annas share in the subject- 
matter of the lease, executed this docu- 
ment through their constituted attorneys 
and it is quite true that there 'is no evi- 
dence in this case that these attorneys had 
any authority to execute the agreement 
on behalf of the 11 annas share holders. 
The objection as to the sufficiency of proof 
was taken in the Court below and the 
learned Subordinate Judge decided, in my 
opinion, rightly, that no presumption 
arises under S. 90 of the Evidence Act as 
to an agent's Authority which must be 
proved in the usual way. I agree that 
the plaintiff Company has not established 
that this agreement was executed by all 
fche persons interested in the subject- 
matter of the lease of the 25th November 
1881 ; but, in my opinion, the question as 
to the proof of this particular document 
does not fall to be considered. The learned 
Subordinate Judge made unnecessary diffi- 
culty for himself, We know that the 
legal title in the thing demised was in 
Kenny although there were various other 
persons benelicially entitled to specific 
shares in it. We may put out of our mind 
the agreement of the 5th February 1891, 
Kenny died ; and on his death probate 
was obtained of his Will in England. As 
1 have said, Foley obtained Letters of 
Administration to the estate of Kenny 
"with effect within the province of Bengal' 1 
Now what is the position? Upon the grant 
of Letters of Administration to Foley, the 
demised land (which was thep within the 
province of Bengal) vested in Foley an 
such administrator ; and Foley was com- 
petent to deal with the property in due 
course of administration. As will be re- 
membered, Foley conveyed the demised 
property to Barabhum Co., Ltd., on the 
29th January 1908. The learned Subordi- 
nate Judge objects to this transaction. He 
remembered that the declaration of trust 
showed that Kenny was a beneficial owner 
of only a small share in the property and 
that in regard to the remaining shares he 
was a trustee of eleven other persons ; arid 
he thought that as Kenny's Will did nob 
purport to deal with the legal title in the 
demised property, that title did not vest 
in Foley so as to enable him to convey it 
to Barabhum Co., Ltd. 

Now it is quite true that KeiAiydid not 
deal with the demised property in his 
Will and the learned Subordinate Judge 



134 Patna MIDNAVUR ZAMIJJDASY Co, v. RAM K VNAI SINOH (Das, J.) 



1926 



is right in saying that "so far as this 
property is concerned, he died intestate. " 
But even the estate of an intestate has to 
be administered in due course of law, and 
S. 179 of the Indian Succession Act says 
that the " executor or administrator as 
the case may be, of a deceased person is 
his legal representative for all purposes, 
and all the property of the deceased per- 
son vests in him as such." Now what is 
the meaning of the words " all the pro- 
perty of the deceased ? There is high 
authority for the view that the words * all 
the property of the deceased " must be 
construed as meaning the actual property 
of the deceased, whether held by him for 
his own benefit or for the benefit of others : 
See De Souza v. Secretary of State (l). 
There is no reason to doubb therefore that 
the demised property vested in Foley 
as such administrator under S. 179 
of the Indian Succession Act. 

The next question is whether Foley 
was entitled to convey the property to 
Barabhum Co. LtcJ., Now before dealing 
with tliis question lot me examine what 
Foley purported to do. The deed of 
conveyance of the 29th January 1908 
recites the following transactions :- 

First, the mokarrari p.ttta of the 12th 
November 1881 granted by iiaja Braja 
Kishore Singh to Kenny. 

Second, the deed of declaration of trust 
by Kenny by which lie declared that he, 
his heirs, executors and administrators 
and representatives should and would 
stand and be possessed of the subject- 
matter of the lease of 1881 in trust for 
the several persons whose names appeared 
in the second schedule of the deed. 

Third, the agreement of the 5th 
February 1891 by which the persons then 
entitled to the subject-matter of the lease 
of the 25th November 1881 agreed to sell 
the mining rights conferred by that lease 
to Barabhum Co., Ltd., for Bs. 32,000 
which sum should be paid and satisfied 
by the allotment to the vendors of 320 
shares in the capital of the Company. 

It then recites that the said shares 
have long. since been allotted to the said 
parties and that ever since the completion 
of the agreement of the oth February 
1891 the Company has been in possession 
of the mining rights conferred by t<he said 
patta, but that the legal estate was still 
outstanding in Kenny. In these circum- 
stances Foley, as the administrator ojtlie 

(1) [1874J 12 B. L.~R. 4237 ~ 



estate of Kenny, transferred the minin 
rights conferred by the patta of the 25th 
November 1881 to Barabhum Co , Ltd. 

Now, what is there to object to in the 
transaction ? In point of form, the pro- 
perty stood in the name of Kenny, and 
Foley, as the administrator of the estate 
of Kenny, was competent to convey the 
property to Barabhum Co., Ltd., in due 
course ^f Administration. If substance is 
to be regarded, then, there is no doubt 
that though the legal title was in Kenny 
the persons who were beneficially entitled 
to the property had already conveyed 
their interests to the Barabhum Co. Ltd., 
for valuable consideration, and were 
entitled to call upon Kenny or on the 
administrator after his death to convey 
the legal estate to Barabhum Co., Ltd. 
Now ii miy be said that Foley had no 
business to convey the property to 
Barabhum Co., Ltd., without the per- 
mission of the Court. The general rule 
established under S. 90 of the Probate and 
Administration Act is that ordinarily an 
administrator ought to obtain the pre- 
vious permission of the Court before 
conveying the property to a third party. 
But then that section provides that a dis- 
posal of the property by the administrator 
in contravention of the rule stated in para. 
3 of S. 90 is voidable at the instance of 
any other person interested in the pro- 
perty. In other words, if any objection 
was to be made to the conveyance of the 
29th January 1908 that objection could 
proceed either from the heirs of Kenny or 
the heirs of the beneficiaries recognized as 
such in the deed of declaration of trust. 
The objection could neither proceed from 
the landlord nor from any other party 
claiming through the landlord. In my 
opinion the conveyance in favour of 
Barabhum Co., Ltd., is not open to attack. 
That being so, the plaintiff Company has 
clearly established its title to the demised 
property; for it is not disputed that the 
Barabhum Co., Ltd., validly transferred 
the property to Billinghurst on the 14th 
July 1916 and that Billinghurst; validly 
transferred it to the plaintiff Company on 
the Hth January 1917. 

The next point is whether the present 
suit by the plaintiff u Company is main- 
tainable. The learned Subordinate Judge 
has shown some research into the intrica- 
cies of the English common law. He 
says that neither the plaintiff Company 
nor its predecessors ever got possession of 



1926 MIDNAPUR ZAMINDARY Co. v. BAM KANAI SINGH (Das, J,) Patn* 135 



the demised property ; and that that being 
BO, the demise only gave the lessee a right 
of entry in the property or, which is the 
same thing, an interessee termini which 
is not sufficient as a foundation for an 
action for trespass or a suit for injunc- 
tion and damages. Now, so far as I know, 
this doctrine has been applied in England 
only to leases for years ; it has, for in- 
stance, never been applied to what are 
known as freehold leases. Now the lease 
with which we are concerned is a per' 
petual lease, a lease creating a permanent, 
transferable and heritable interest in the 
thing demised, in which the landlord has 
no right of reversion. Sonet Kooer v. 
Himmut Bahadoer (2). A lease of this 
nature is, so far as I am aware, unknown 
to the Buglish common law, and I do not 
think that it is quite necessary to apply a 
doctrine applicable to English leases 
which is unknown to English Law In the 
next place it is as well to look to the 
definition of a lease in the Transfer of 
Property Act, a statute with which we 
should be acquainted. At common law, 
possession under the instrument is neces- 
sary to complete a lease, so that after a 
lease has been granted and before actual 
entry has been made by the lessee, he is 
for many purposes not a tenant. Under 
the Transfer of Property Act a lease of 
immovable property from year to year or 
for any term exceeding one year, or reserv- 
ing a yearly rent, can be made only by a 
registered instrument. All other leases 
of immovable property may be made 
either by a registered instrument or by 
oral agreement accompanied by delivery of 
possession. It will be noticed that deli- 
very of possession is essential to the corn- 
pletion of a lease under the Transfer of 
Property Act only where it has been made 
by oral agreement ; and a lease by oral 
agreement cannot be made where it is 
from year to year or for any term exceed- 
ing one year or reserving a yearly rent. 
Now if, as I hold, delivery of possession is 
not necessary for the completion of a 
permanent lease under the Transfer of 
Property Act, I do not see why we should 
import into our system the complications 
f English Law wheife delivery of posses- 
sion is necessary to complete a lease. In 
the third place, what foundation is there 
for the suggestion that -the plaintiff Com- 
pany is not in possession'? By posssesion 

^<2) [1876] 1 Oal. 391=8 I. A.T2^25 W. R, 
299=r3 Bar, 608 (P. C.}. 



is, and must be, meant possession of that 
character of which the thing is capable. 
We are concerned in this litigation with 
underground rights which are not capable 
of possession as a house, a watch or a ring 
is. For many purposes the law regards 
the right to possession as equivalent to 
possession, especially when the property 
is not in the actual possession of any one* 
It is quite true that the plaintiff Company 
has not yet worked the mines ; but the 
mere omission of the mineral owner to do 
anything with the subject-matter of 
his grant will not be , a disseisin or 
dispossession of him in favour of the 
surface owner :" (see Pollock and Wright] 
on Possession, p. 87). Now obviously 
there is no question of a disseisin 
unless, to start with there is a seisin, and, 
in my opinion, the question, the omission 
of the mineral owner to work the mines does 
t not show that he is not in possession 
of the mines. I hold that the plaintiff 
Company was in constructive possession 
of the tiling demised and that construc- 
tive possession is a sufficient foundation 
for an action in trespass (Clerk' and Lind- 
sell on Torts, 6th edition, 380). In the 
fourth place, it is not necessary to embar- 
rass ourselves with a discussion as to 
forms of action known to English common 
law. If it were necessary to do so, one 
might say that though <* person, not in 
possession, is not entitled to maintain 
trespass, he is entitled to maintain trover 
and to recover the value of personal chat- 
tels wrongfully converted by another to 
his own use. It is necessary to see what 
is the substance of the plaintiff Company's 
claim in this case. There is an injury 
to the plaintiff Company's right both act- 
ual and threatened. It has proved its title. 
It shows that the defendants or some 
of them have carried away coal which 
belong to it, and are threatening to carry 
more coal or convert that coal to their 
personal use. Is it to be supposed that 
the plaintiff Company has no remedy 
because it is not in actual possession of 
the thing deminfed ? Now, even .at com- 
mon law, a tenant having a mere inter* 
essee termini could maintain an action 
for damages for recovering the value of 
coal wrongfully converted by another to 
his own use and he could also maintain 
an action for injury to his rights : Gillcucd 
.v. Cheshire Lines Committee (3) and these 
are remedies which the plaintiff Company 

(3) 3? W.R. 943. 



136 Patna MIPNAPUR ZAMINDARY Co. v. BAM KAN.AI SINGH (Das, J,) 1926 



is seeking *in this case. In regard to 
the question of injunction, the case upon 
which the learned Subordinate Judge 
relies does not in my opinion establish 
that a plaintiff, not in possession, is not 
entitled under any circumstances, to in- 
junction, even if he satisfies the Court 
that the injury which is apprehended will 
bo either continuous or frequently 
repeated or very serious. The case of 
WalUs v. Hands (4) was decided on its 
own facts and is not an authority for 
the proposition that " a man having only 
interessee termini cannot bring a case for 
injunction." fn my opinion the plaiutiff 
Company is entitled to maintain this 
action. 

The next question is whether there was 
by operation of law an abandonment or 
surrender of the lease by Kenny. There 
is no doubt that the plaintiff Company 
lias not worked the mines ; but there is 
ample authority for the view that mere 
non-user does not amount to an abandon- 
ment. The passage which I have already 
cited from Pollock and Wright may be 
referred to in this connexion. It is not 
necessary to cite authorities ; for the 
principle is well recognized. The learned 
Subordinate Judgo relies 'upon the follow- 
ing circumstances in support of his theory 
as to abandonment: Ho says that in 1901 
tho proprietor treated the lease as having 
been surrendered or abandoned. In 1904 
tho manager of tho proprietor granted JL 
prospecting license to Messrs. Mackinnon 
Mackenzie & Co,, whoso agent Eobinson 
worked a particular kind of mineral called 
galena in one of the mouzas called Beldi; 
and the learned Subordinate Judge says 
that " tho inference is that when the 
zamindar found that for a period of 20 
years the leseee had not worked but had 
left the country, he inferred that the 
lessee had surrendered the lease and 
entered upon possession, " and he says 
that, since the zamindar entered upon pos- 
session, the lease was extinguished. 
There is, in my opinion, neither principle 
nor authority in favour of the startling 
proposition laid down oy the learned 
Subordinate Judge, A contention very 
much like tho one which found favour 
with the learned Subordinate Judge was 
advanced before the Privy Council in 
Agency Co. v. Short (5), Lord Macnaghten 

(4) [1898]" Tch. 75=6HL. J. Ch. 586-3 R, 
351 68 L.T. 428=41 W.K. 471. 

(5) [1888] 13 A. C, 793. 



in dealing with the contention said that 
in the case of mines the 'doctrine con- 
tended for might lead to starting results 
and'produce great injustice. It is quite 
true that the proprietor treated the lease 
as having been surrendered in 1901: but 
what he understood is of no consequence 
unless he actually took possession of the 
demised land and retained possession for 
the statutory period. It is quite true 
that in 1904 he granted a lease to Messrs. 
Mackinnon Mackenzie <fc Co., and that 
Mackinnon Mackenzie Co. worked the 
galena in one of the mouzas comprised 
within the perganna. It is not suggested 
that any of the subsequent lessees has 
been in .possession for the statutory 
period. That being so, there was no 
abandonment of his interest by Kenny. 

I will now deal with the question of 
limitation. The defendants rely upon 
the following facts as establishing that 
the plaintiff's suit is haired by limitation. 
On the 9th November 1909 a letter was 
written by Mathewson as putnidar of the 
perganna contending that the mining 
rights in the perganna belonged either to 
the Government or to him as represent- 
ing the zamindar. This letter throws no 
light on the question of possession. On 
the 21st October 1905 the proprietor gave 
a mining lease to Sullivan. Admittedly 
Sullivan has never worked the mines and 
lie surrendered the lease by registered 
document. No question of dispossession, 
therefore, arises. Between August 1904 
and September 1905 Messrs. Mackinnon 
Mackenzie & Co. worked a particular kind 
of mineral called galena in village Beldi 
under a license from the Manager of the 
Encumbered Estate. The extent of that 
working is shown by the local inspection 
note of the learned Subordinate Judge and 
the amount of the working is to be found 
in Ex. R. It appears that they took 
Rs. 17,415 worth of gajena and that they 
paid the Raja Rs. 162 as balance of the 
royalty due. It may be admitted that 
there was an ouster of the plaintiff Com- 
pany or its predecessors in title by Messrs. 
Mackinnon Mackenzie & Co. of village 
Beldi comprised within the perganna bet- 
ween August 1904 and September 1905; 
tut Messrs. Mackinnon Mackenzie & Co. 
entered upon possession without title for 
the proprietor had no power to grant a 
lease to Messrs. Mackinnon Mackenzie 
Co. They ceased to work in September 
1905; and the rightful owner, thafc is to 



1926 



SHDHA KRISHNA v. E. I. By. Co. 



Pataa 137 



say, the plaintiff Company, or its prede- 
cessors-irrtitle, on Messrs. Mackinnon 
Mackenzie & Co., abandoning possession 
of the mouza was in the same position in 
all respects as it vras before the intrusion 
took place. As Lord Macnaghten in 
Agency Co. v. Shoit (5) says : "There is no 
one against whom he can bring an action. 
He cannot make an entry upon himself." 
Time undoubtedly began to run as against 
the plaintiff Company in August 1'904 in 
regard to mouza Beldi ; but in my opinion 
it ceased to run in September, 1905 when 
Messrs. Mackinnon Mackenzie & Co. 
abandoned possession of the mouza. On 
the 15th Juno 1906 the Manager of the 
Encumbered Estate wrote a letter to 
Messrs. Hoare Miller & Co., the managing 
agents of Barabhum Co. Ltd., informing 
them that the Baj ignored Kenny's Jease. 
The Manager in his letter said : " The 
mining rights have remained latent from 
the date and year the lease was granted." 
Messrs. Hoare Miller & Co.,' replied to 
this letter which has not been put in by 
tbe defendants. On the 24th June 1906 
there was another letter from the manager 
in which he repeated that the proprietor 
refused to recognize Kenny's lease. In 
my opinion the refusal to recognize 
Kenny's lease did not amount to dispos- 
session. What was wanted on the part 
of the proprietor was a positive act of 
dispossession so as fco enable him to in- 
voke the doctrine as to lapse of time. As 
J have said, the rightful owner may in- 
voke the doctrine as ,to constructive pos- 
session. He may for a time be disposses" 
ped ; but when the trespasser abandons 
possession, the rightful owner, to quote the 
woi'ds of Lord Macnaghten, " is in the 
same position in all respects as he was 
before the intrusion took place." The 
letters, Exs. G-l and G-2 throw no light 
whatever on this point. On the 9th April 
1907 the Baj gave a lease to Gobind Bose. 
Jfc is not suggested that Gobind Bose took 
possession by virtue of this lease or carried 
on any underground operations. One may 
therefore ignore Gobind Bose's lease. On 
tbe 5th September 1911 the Baj gave a 
lease to Herambo who in his turn granted 
a prospepting license ^o Guzder on the 5th 
June. 1919 and again'on the llth February 
1920. It is not suggested that Herambo, 
Defendant No. 3, took possession by virtue 
of his lease or that he carried on any 
underground operations. The plaintiff's 
cause of action arose for the first time 



when Ckizder, through Chaiukn Singh, 
began to act under the prospecting lease. 
The suit having been instituted on the 
14th June 1920 is amply within time. 

The last question is as to estoppel. Ifc 
is difficult to understand the view of the 
learned Subordinate Judge on this point. 
Tt is contended that "as the predecessors- 
iirinterest of tho plaintiff Company by 
not working the minerals in the perganna 
made the defendant believe that the 
zamindar had the right to settle the 
minerals and as in that belief ho paid 
Es. 25,000 as salami to him for the lease 
of the minerals, the plaintiff Company, is 
estopped from claiming a leasehold^ in- 
terest in the minerals as against him," In 
my opinion it is only necessary to state 
the proposition to reject it. I hold that 
there is no question of estoppel to be tried. 

I would accordingly allow the appeal, 
set aside the judgment and the decree 
passed by the Court below. The plaintift 
Company is entitled to a declaration of 
title in its favour and to a permanent in- 
junction restraining the defendants and 
their agents and servants from working 
and appropriating the minerals in^ per- 
ganna Barabhum. The plaintiff Company 
is also entitled to its costs in this Court 
and in the Court below. 

Adami, J. 1 entirely agree. 



* A, I. R. 1926 Patna 137 

ADAMI AND KULWANT SAHAY, JJ. 

Sudha Krishna Mukerji- -Appellants, 
v. 

East Indian HaiLvay Co. Respondents. 

Appeal No. 37 of 1922, Decided on 
22nd May 1925, from the appellate de- 
cree of the Addl. Sub-J., Hazaribagh, 
D/" 27th September 1921. 

% Bath-ays Act, S. 72 /tf.'fc Note A Loss due 
to unsound packing is covered by the note Ad- 
mission of loss discharges burden on company s part. 

jRisk Noto A would absolve the Company from 
any responsibility for loss owing to the bad con- 
dition of the bags throughout the period of tran- 
sit, and the period of transit would commence 
from the time that the brtgs were received and 
were carried to the train. The question of onu* 
will not be the same in regard to the Risi Note 
in Form A as it is in regard to the Bisk Note ;m 
From B. The two indemnities are quite differ- 
ent. It is not necessary for the defendant Com- 
pany to prove that there has been such loss or 
damage as U contemplated in the Risk Note, 
where it is clear from the admissions that .there 
was such loss, and damage. * [P 138 v, 2J 

R. C. De-tor Appellant, 

S. N. Bose tor lUspbndents. 



138 Patoa 



8ui)HA KRISHKA v. E. I. BY. Co. (Adami, J.) 



1926 



Adami, J, The plaintiff-appellants 
are merchants in Giridih, They ordered 
a consignment of rice from Burma and 
this consignment duly arrived at the 
Kidderpur docks in Calcutta. Their 
agent in Calcutta delivered this rice, 
which on weigh men t was found to 
amount to 2,473 maunds, to the East 
Indian Eailway at the Kidderpur Dock. 
The Railway Company seeing that the 
hags in which the rice was contained 
were unsound and had holes in them, and 
that the seams were weak, refused to take 
the consignment unless the consignor 
agreed to sign a Bisk Note in Form A. 
The Risk Note was signed by the con- 
signor and showed that the weight of the 
rice delivered to the Railway Company 
was 2,473 maunds. The consignment was 
received on the 3rd November and was 
delivered at Giridih. On arrival at Giri- 
dih and on weighment of the consign- 
ment it was found that there were 
2,268 maunds in the bags. The plaint- 
iffs thereafter instituted the suit 
out of which the second appeal arises 
claiming damages for the shortage of 
the* consignment delivered. The Mun- 
sif decreed the plaintiff's suit, but the 
Subordinate Judge has reversed the find- 
ing on appeal and lias dismissed the suit 
except as regards the freight paid by the 
plaintiff for 108 maunds of the rice. 

The line of argument taken up before 
us is that though it has been found that 
no loss can have happened during the time 
that the vice was actually in the train, 
since the seals on the wagon were 
found to be intact, the defendant Rtxil- 
way Company would have to show that 
the loss did not occur after the rice was 
received on the 3rd November and before 
it was put into the Railway wagon. It 
is argued that the Risk Note in Form A 
does not cover this period. 

Now, in the first place, there is no evi- 
dence to show that the Railway Company 
stored the rice for any time before putting 
it into the train. It appears that it was 
taken fro,m the steamer in the dock and 
put into the railway wagon as soon as 
possible. In the second place, there can 
be no doubt from the time when the rice 
was delivered to the Railway Company 
up to the time it was delivered at Giridih 
the consignment was in transit and was 
covered by the Risk Note in Form A. 

The material portion of the Risk Note 
in Form A is as follows : 



Whereas the consignment is in 

bad condition and liable to damage, leak- 
age or wastage in transit, I the under- 
signed do hereby agree and undertake to 

hold the said Railway administration 

harmless and free from all responsibility 
for the condition in which the aforesaid 
goods may be delivered to the consignee at 
destination and for any loss arising from 
the same." 

It is clear in my mind that this Risk 
Note would absolve the Company from 
any responsibility for loss owing to the 
bad condition of the bags throughout the 
period of transit, and the period of tran- 
sit would commence from the time that 
the bags were received and were carried 
to the train. It may be true that it was 
not found that any grain escaped while 
the rice was in the wagon, but it is quite 
possible that while the bags were being 
taken to the train the loss occurred owing 
to their bad condition. The Risk Note frees 
the Railway Company from responsibility 
for any loss arising from the condition 
in which the goods packed in these un- 
sound bags might be delivered to the 
consignee. The learned Subordinate Judge 
lias come to a definite finding that the 
loss was due to the defective condition of 
the packing and I think that that finding 
is sufficient to absolve the Company from 
responsibility. 

It has been argued that the onus would 
fall on the defendant Company in the 
lirst place to show that the loss was one 
such as is contemplated by the Risk Note, 
and, I think, that the admission of the 
plaintiffs that the bags were in poor 
condition was sufficient to save the defend- 
ant from discharging such onus if such 
discharge was necessary. The question 
of onus will not be the same in regard to 
the Risk Note in Form A as it is in 
regard to the Risk Note in Form B. 
The two indemnities are quite different. 
It is not necessary for the defendant 
Company to prove that there has been 
such loss or damage as is contemplated in 
the Risk Note because it is clear from the 
admissions that there was such loss and 
damage. 

. There is no reason, I think, to interfere 
with the finding of the learned Subordi- 
nate Judge and I would, therefore, dis- 
miss the appeal with costs. 

Kulwant Sabay, J. I agree. 

Appeal dismissed. 



1926 



BAMSAKAL BAI v. KING-EMPEROR (Bucknill, J.) 



Patna 139 



A. I R 1926 Patna 139 

BUCKNILL, J. 

Ramsakal Rai and others Petitioners. 
v. 

King-Emperor Opposite Party. 

Criminal Bevision No. 248 of 1925, 
Decided on llth June 1925, from an order 
of the S. J., Shahabad, D/- 17th March 
1925. 

Criminal P. C., 5. '251Maglstrate deciding to 
caU a witness should take steps to produce him but 
lie can dispense with his presence If lie finds It 
unnecessary. 

As a general proposition it should be considered 
that once a Magistrate has given orders that a 
certain witness should be called he should take 
such steps as may ba necessary and possible to 
enforce his attendance, but it cannot be suggested 
that in no case it is possible for the Magistrate, if 
he comes to the conclusion that the attendance 
of the witness is not really necessary, to dispense 
with that person's attendance. [P. 140, 0. 2] 

Devaki Prasad Sinha for Petitioners* 
D. L. Nancfkeolyar for Opposite Party. 

Judgment. This was an application 
in criminal revisional jurisdiction made 
by some persons who were convicted by 
the Deputy Magistrate of Arrah on the 
16th of February last of offences punish- 
able under the provisions of Ss. 1 43 and 
379 coupled with S. 34, Indian Penal 
Code. Tbe applicants appear to have 
been sentenced each to pay a tine of 
Rs. 50 under the provisions of S. 379, 
Indian Penal Code, and in default of pay- 
ment thereof to undergo rigorous impri- 
sonment for two months, no separate 
sentence was passed upon them in con- 
nexion with the provisions of S. 143, 
Indian Penal Code. 

The only ground which has been put 
forward upon which it is urged that this 
Court should interfere, is because it is 
-suggested that there has been a wrongful 
exercise of jurisdiction by the Deputy 
Magistrate in connexion with the pro- 
cedure. It is unnecessary to go into the 
facts relating to the offences with which 
these men were charged further than to 
gay that the affair related to blocking up 
of, a water-course. In the course of the 
trial, which proceeded in the usual 
manner, a certain SuVlnspector of Police 
was examined as a witness for the prose- 
cution, he was cross-examined at consi- 
derable length by the defence. Now, it 
would seem that the defence wished to 
call this Sub-Inspector either as a defence 



witness or for the purpose of what was 
in effect further cross-examination : and 
on the 28th of January last it seems that 
the Magistrate at that time was ready 
to agree that this should be done. At a 
later stage, however, namely, on the 9th 
of February he altered his view. The 
note in the order sheet of the 28th of 
January last, so far as it is here material, 
reads : "The defence prays that Sub-In- 
spector of Sahar who had been summoned 
lias not turned up to-day and his evidence 
is necessary. Summon him afresh." The 
Magistrate's note on the 9th of February 
last reads : " The defence filed a petition 
that the Sub-Inspector is not forth-com- 
ing to-day and that his examination is 
necessary as a defence witness. It ap- 
pears that he was examined as a prosecu- 
tion witness (No. 5) and he was cross- 
examined at length by the defence side. 
I have already granted two adjournments 
for this, and I cannot wait any longer for 
time now. 

Now it is suggested that this action 
taken by the Deputy Magistrate is illegal. 
The Deputy Magistrate, in his explanation 
which appears to be dated about the 28th 
of ^May last, says : 

The Sub-Inspector in question was exa- 
mined as a prosecution witness (No. 5) 
on 3-1-25. 

Charge was framed against the accused 
on 14-1-25, and the accused persons h ad 
ample opportunity of cross-examining 
the Sub- Inspector before charge and 
after the charge. 

The Sub-Inspector was cross - ex- 
amined at great length by the defence 
side on 15-1 -25, and then discharged. 

Technically speaking, the Sub-Inspector 
could not have been summoned as a defence 
witness, under such circumstances. 
He could have only been summoned 
under S. 257, Criminal P. C., for further 
cross-examination, on the discretion of 
the C<purt, if the Court was satisfied that 
it was necessary. But no such necessity 
appears to have been mentioned in the 
petitions of the accused, dated 28-1-25 
(vide flag A) and 9-2-25 (vid'e flag B). 
Even then I had granted two adjourn- 
ments for this. But the Sub- Inspector 
was not available. So I did not think it 
proper to drag on the case any more, 
thereby causing delay in the administra- 
tion of justice," 

Now the defence applied to the Ses- 
sions Judge of Shahabad upon this point 



140 Patna 



BADRI SAHCT v. PANDIT PEARE 



1926 



nml the learned Sessions Judge dealt with 
the matter on the 17th of March last. 
It is perhaps useful to refer to what the 
learned Sessions Judge has said in his 
judgment. It reads : " On hehalf of the 
petitioners it has been urged that 
once the Magistrate had directed that the 
police Sub-Inspector should he re-called 
for cro^s-examination after the accused 
had entered on their defence, he was 
hound to insist, on his appearance. The 
proposition so stated is not without 
force. But in this case the petitioner had 
had an opportunity of cross-examining 
the Sub-Inspector before the framing of 
the charge and had cross-examined him 
at some length after the charge had been 
framed. The attendance of the Sub-In- 
spector therefore was not to be compelled 
unless it was necessary for the purpose 
of justice. It appears that his non-at- 
tendance on the first date, 28th January 
1925, was due to the fact that he never 
received the summons till 31-1-25 (the 
application for his attendance made by 
the accused was filed so late as 23rd Janu- 
ary 1925) and that it was due on the 
second date, 9th February 1925, to his 
inability to attend tho Court owing to 
an accident. It is now said that the 
petitioners wished to question this 
officer for tho purpose of finding out 
whether lie had observed any sign of the 
placing of the karah in, or of the removal 
of the karah from, the pyne, a question 
of importance which they had omitted 
when the officer was cross-examined. 1 
have consulted tho record of the case, and 
am doubtful whether the Sub-Inspector 
could have afforded useful assistance to 
the Court on th/s point. There is no 
doubt but that pyne was blocked and 
that ol the materials used for this pur- 
pose bamboos and paddy bundles formed 
a part , there is corroboration here of the 
prosecution story. I am not satisfied that 
this is a tit case for interference." 

I entirely agree with what the learned 
Sessions Judge has written. The ques- 
tion of the sauce-pan appears to me to 
be one oi very slight importance. As the 
learned Judge has pointed out, the princi- 
pal matter was the blocking up of the 
pyne with various materials and what 
assistance could seriously have been af- 
forded to the defence by the police 
officer's remarks upon a sauce-pan it is 
difficult to gather. Did I in the least 
think that the applicants had been in any 



way pr0judieedby whttt has taken place I 
should have no hesitation in interfering,but 
as it has in no way been shown or proved 
to me that there has been the least pre- 
judice against the applicants I do not 
think that it is proper that I should in- 
terfere. It may be said, as has been 
pointed out by the learned Sessions Judge, 
that as a general proposition it should be 
considered that once a Magistrate has 
given orders that a certain witness should 
be called he should take such steps as 
may be necessary and possible to enforce 
his attendance. I, however, am not pre- 
pared to assent to the suggestion that in; 
no case it is possible for the Magistrate,! 
if he comes to the conclusion that thel 
attendance of the witness is not really 
necessary, to dispense with that person's 
attendance. In this case the circum- 
stances were such that I think he was 
not only competent to dispense with this 
Sub-Inspector's further attendance, but 
that he was right in so doing. 

The application, therefore, will be dis- 
missed. 

A2)pUcation dismissed. 



% A. I. R. 1926 Patna 140 

MrLLICK AND KULWAXT SAHAV, JJ. 

Badri Sahu and others Decree- holders 
Appellants. 

v. 

Pandit Peare Lai Misra and others 
Judgment-debtors Respondents. 

Miscellaneous Appeal No. 58 of 1925, 
Decided on 23rd October 1925, against 
an order of the Sub-J., Muzafferpur, D /- 
22nd December 1924. 

^ Civil P. C., O. 21, Rr. G6 and 12 Price in 
proclamation 1$ not an exact estimate Court 
cannot compel decree-holder to bid up to or higher 
than the proclaimed price. 

There is no provision of law compelling the 
decree-holder to bid up to any sum that may 
be fixed by the Court. The valuation in the 
sale proclamation is intended primarily for the 
protection of the judgment-debtor and for giving 
information to the bidders at the auction sale. 
It is in no sense intended to be an exact estimate 
of the value of -the property, and if in a win 
properly published and conducted, the highest 
bid, whether of the derfree-holder or any other 
person, is some figure below the figure given in 
the sale proclamation, it is not -compete nt to 
the Court to compel the decree-holder to bid 
higher than that highest bid. [P. 141, C.'l] 

LaJcshmi Narayan Singh for Appel- 
lants. 



1926 



Eiuxu RAM v. FOGAL RAM (DAS, J.) 



Palna Hi 



Mullick, J. No one appears to oppose 
this appeal. It appears that the decree- 
holder valued the property for the pur- 
poses of sale proclamation at R 5. 1,600. 
At the sale the decree- holder bid up to 
Rs. 600, but the Munsif declined to allow 
him to purchase the property unless he 
bid up to Rs. 1,300. As the decree-holder 
was unwilling to do so the sale was 
not held and the execution case was 
dismissed. The decree-holder then ap- 
pealed and the Subordinate Judge who 
heard the appeal agreed with the Munsif. 
The present second appeal is preferred 
by the decree-holder. 

There is no provision of law compel- 
ling the decree-holder to hid up to any 
sum that may be fixted by the Court. The 
valuation in the sale proclamation is 
intended primarily for the protection of 
the judgment-debtor and for giving 
information to the bidders at the auction 
sale. It is in no sense intended to be 
an exact estimate of the value of the 
property and if in a sale, properly 
published and conducted, the highest bid, 
whether of the decree-holder or any other 
person, is some figure below the figure 
given in the sale proclamation, it is not 
competent to the Court to compel the 
decree- holder to bid higher than that 
highest bid. 

The order of the Subordinate .ludge 
will be set aside and the appeal will be 
decreed and the decree-holder's bid ot 
Rs. GOO must be accepted. 

Kulwant Sahay, J. 1 agree. 

Appeal aUf itvcd . 



A. 1. R 1926 Patna 141 

DAS AND ADAMI, JJ. 

Iftiatu Earn Modi and another 
Defendants Appellants. 
v. 

Fogal Ram Plaintiff Respondent. 

Appeal No. 98 of 1922 Decided on 3rd 
November 1925, from a decision of the 
Sub-J., JHazaribagb, D/- 2lst January 
1922V ** " ' 

(a) Civil P. C',, O. flo,./J. l<2 Decree for mesne 
profit* passed Application for ascertainment 
cannol be dismissed. 

After decree for possession and mesne profits 
hag bean passed, the proceedings for the ascertain- 
ment of mesne profits cannot be dismissed, for the 



dismissal of those proceeding"* would cpeiateasa 
dismissal of the suit itself. Dismissal of such 
proceedings i< ultra vires ; .4. J. .ft. IS'24 P. C. 19^, 
Fo 7 /. [P. 1V2. C. 2] 

(6) Ctrill*. ('., O. 20, J?. 12 Application for 
mono pi of Its Law of limitation does net apply t 
An application for masne profits is aa applica- 
tion iu the suit itsalf and the law of limitation 
has no application to it *o long as the suit is a 
ponding suit [P. 142, C. 2, P. HI, C. 1] 

SliUan Ahmel ail S. -V. Dutt for 
Appellant?. 

S. M. Mullick anl B. C. Z* for 
Respondent, * 

Dai, J. On the 25th August 1915 tho 
Ramgarh Raj obtained a decree for i>os- 
seasion of certain properties, for mesne 
profits up to the date of tho decree " at 
the rate of the rent fixed in the lease 
with interest thereon rft tho rate speci- 
fied in the said lease " and for subsequent 
profits " at the full rate recoverable 
under the law." The Ramgarh Raj ob- 
tained possession of the properties on the 
22nd February 191 6 and it therefore be- 
came entitled to mesne profits at tho rate 
of rent up to the 25th August 1915 and 
at the full rate from the' 25th August 
1915 to the 22nd February 1916. 

On the 23rd December 1915 tho Raj 
presented an application for execution 
claiming Rs. 2,866-11- as mesne profits 
for eleven years up to the date of the 
decree and Rs. 3,069-11-9 as mesne profits 
from the date of the decree up to the 
23rd December 1915'. The application 
was presented as a simpld application for 
execution of the decree, the Raj audits 
legal advisers having overlooked the fact 
tbjat under the Code of Civil Proce- 
dure of 1908 ascertainment of mfcsne pro- 
tits was a proceeding in the suit itself. 
Certain proceedings we're taken and cer- 
tain properties of the judgment-debtors 
were sold in this execution ; but an objec- 
tion havingtbeen taken the sale was sefc 
aside on the 8th December- 1917 and the 
decree-holder was directed to file fresh 
execution. On the t 18th August 1919 
another execution case was started by the 
Raj. On the llth November 1919 this 
was rejected as infructuous, because cer- 
tain substitutions had not been effected. 
On the 7th March 1920 the third execu- 
tion" case was started. The judgment- 
debtors now for the first time raised the 
objection that mesne profits could not be 
ascertained in execution and that there 
was no application for ascertainment of 
rnesne profits and that the application for 



142 Patna 



BHATU RAM v. FOGAL BAM (DAS, J.) 



192* 



execution could not be converted into an 
application for ascertainment of mesne 
profits. On the 17th April 1920 the 
Court dismissed this application as barred 
by limitation. The Court also held that 
the proceedings could not continue, 
as mesne profits had not been ascer- 
tained which must be ascertained in 
a proceeding in the suit itself. The deci- 
sion of the Court on the question of limi- 
tation was subsequently set aside by that 
Court on review and that decision was 
upheld by this Court. Having regard to 
this decision Fogal Ram, who meanwhile 
had purchased the decree from the Raj 
instituted the present proceedings on the 
29th April 1920 for the ascertainment of 
mesne profits. His application has suc- 
ceeded and the judgment-debtors appeal 
to this Court and they contend that 
having regard to the previous orders, 
namely, those passed on the 8th December 
1917, llth November 1919 and the 17th 
April 1920, the present application was 
not maintainable. The matter was heard 
before my learned brother and myself on 
the 5th May 1925 when we delivered 
judgment agreeing with the contention of 
the appellants. Mr. B. C. De thereafter 
appeared before us before we had signed 
the judgment and he asked for permission 
to argue the matters again before us. 
We acceded to the request and we have 
heard the parties fully to-day. In my 
opinion, having regard to the argument 
which have bean advanced before us to- 
day, we must affirm the decision of the 
lowetf Court aqcj dismiss this appeal. 

The short pojht which falls to be consi- 
dered is whether there is any power in a 
Court to dismiss an application for ascer- 
tainment of mesne profits. It is conten- 
ded before us by Mr. Susil Madhab Mullick 
that a decree haying been passed for as- 
certainment of mesne profits it was not 
competent to the Court at any stage to 
dismiss those proceedings, it being 
beyond the power of a Court to dismiss a 
claim which had already been deleted ; 
and it was contended that if the previ- 
ous applications be regarded as applica- 
tions for the ascertainment of mesne pro- 
fits, then the dismissal of those applica- 
tions were from one point of view illegal 
and that in any case they could not pre- 
vent the decree-holder from inviting the 
Court to carry into effect the decree of 
the High Court dated the 25th August 
1915. This view is supported by the deci- 



sion of the Judicial Committee in 
Lachmi Narain 'Marwari v. Balmakund 
Marwari (l). That decision was pro- 
nounced in a suit for partition. A pre- 
liminary decree for partition was made 
and all that remained to be done was to 
carry the partition into effect. The Sub- 
ordinate Judge accordingly fixed a date 
for hearing the parties as to how the 
partition was to be effected and gave 
them notice ; but the plaintiff did not 
appear on the date fixed and thereupon 
the Subordinate Judge dismissed the suit 
for want of further proceedings. With 
reference to what was done by the Sub- 
ordinate Judge, their Lordships said as 
follows . " After a decree has once been 
made in a suit, the suit "cannnot be dis- 
missed unless the decree is reversed on 
appeal. The parties have, on the making 
of the decree, acquired rights or incurred 
liabilities which are fixed, unless or until 
the decree is varied or set aside. After a 
decree any party can apply to have ib 
enforced ;" and then their Lordships said 
this : " If, for instance, the Subordinate 
Judge has made an order adjourning the 
proceodings sine die, with liberty to the 
plaintiff to restore the suit to the list on 
payment of all costs and Court-fees 
thrown away, it would have been a per- 
fectly proper order." 

Now it seems to me that this case 
decides the present controversy between 
the parties. The decree of the 25th 
August 1915 in terms gave a decree to the 
plaintiff for mesne profits. There was, 
therefore, a valid decree which was ope* 
rative and which the Court had to carry 
into effect* That decree was not set aside 
and it seems to me that the proceedings 
for the ascertainment of mesne profits 
could not be dismissed, for the dismissal 
of those proceedings would operate as & 
dismissal of the suit which had already 
been decreed by the Calcutta High Court. 

The question only arises as it is con- 
tended before us that although in form 
the previous applications may have been 
applications for execution -of tfhe %: decree, 
in substance they were applications for 
ascertainment of mesne profits. I hold 
that if they were applications for the as- 
certainment of mesne* profits, their dis- 
missal was ultra vires and . that it wa 
open to the plaintiff to ask the Court to 
ascertain the mesne profits. It; is' well 
established that frn applicafaoii fat mesne 
(if A. I. R. 1924 P. 0.198. 



1926 



DEONAillYAN V. BAM PttASAD (Buckniil, J.) 



Patna 143 



profits is an application in the suit itself 
and that the law of limitation has no 
application to it so long as the suit is a 
pending suit, 

Mr. Sultan Ahmed ingeniously argued 
before us that a distinction should be 
drawn between a suit and a claim which 
may be involved in the suit. He admits 
that the suit having been decreed it was 
not in the power of the learned Subordi- 
nate Judge to dismiss the suit ; but he 
contended before us that the claim for 
mesne profits stood on a different footing. 
I am unable to agree with this conten- 
tion. The only part of the suit that 
remained was that dealing with the ques- 
tion of mesne profits payable to the 
plaintiff ; and in any view the claim for 
mesne profits had in distinct terms been 
decreed by the Calcutta High Court, and 
that being so, that claim could not be dis* 
missed by the learned Subordinate 
Judge. 

I would accordingly dismiss this ap- 
peal. There will be no order as to costs. 

It was brought to our notice that the 
lease does not provide for the payment of 
any interest. That being so, the plain* 
tiff will be only entitled to mesne profits 
at the rate of rent fixed in the lease up 
to the date of the decree. 



Adatni, J. I agree. 



Appeal dismissed. 



A. I. R.I 926 Patna 143 

BUCKNILL AND BOSS, JJ. 
Deonarayan Singh- Judgment -debtor- 

v. 

Prasad and another Decree-hol- 
ders Responden ts. 

Appeal No. 52 of 1925, Decided on 19th 
June 1925, from the appellate order of 
the Dist. J., Gaya, D /- 18th December 
1924. 

Limitation Act, Art. 182 Setting atlde of sale 
under 0. 21? R. 90, Civil P..C. Second application 
for execution after the setting aside of sale Is In' 
continuation of the first one In which sale was 
held Decree-holder's right revives on tlie date of 
setting aside the sale. ... 

A landlord decree-holder applied for execution* of ' 
a rent-decree when the Executing Court held that 



the execution should proceed as on the basis of 
money-decree and not a* a rent-decree. It pro- 
ceeded in that way, and the sale of certain* property 
of the judgment-debtor was actually confirmed aud 
the case was dismissed on lull satisfaction. On the 
same day, the judgment-debtor put in a petition 
to set aside the sale under the provisions of 0. 21 f 
R. 90, and eventually the sale was set aside ; the 
decree-holders then applied once more to execute 
their decree as a rent -decree, 

Held; that the second application should be trea- 
ted as a continuation of the preceding application 
inasmuch a? the prayers in both were to execute 
the decree as rent-decres and further that the- 
decree-holder's right to execute the decree revived 
on the day the sale was set aside. 

[P 142 C 2, P 144 C 1] 

S. N. Roy for Appellant. 
Rayho Prasad for Respondents. 

Buckniil, J. This was a second ap- 
peal. The appellant was a judgment- 
debtor in a suit brought by the respon- 
dents who were decree-holders. The pre- 
sent appeal avisos out of certain execution 
proceedings. Apparently as long ago as 
i^th July 1920 the respondents obtained 
a decree against the appellant, On the 
21st May 1923 the decree-holders pre- 
sented a petition for execution, and on the 
19th November 1928 it would appear that 
a sale took place of the property. I may 
say that it would seem that this decree 
was obtained by the respondents as co- 
sharer landlords and notice had been 
issued by them against other cosharer 
landlords under the provisions of the 
Bengal Tenancy Act, For some reason 
or other this notice was stated not to have 1 
been properly served and thd Munsif, 
before whom the matter in execution ohen 
was, insisted that the execution should 
proceed as a money-decree and not as a 
rent-decree. It appears to have proceeded 
in that way. The sale was actually con- 
firmed, on the 20th December 1923 and 
we are told that the case was dismissed 
on full satisfaction. However, according 
to the information before us, on the same 
day, (that is on the 20th December 1922), 
the judgment -debtor put -in a, petition to 
set aside the sale under the provisions of 
0. 21, R. 90. Now, we are told that the 
ground upon which it was a^ked hat the 
sale should be set aside was that the 
price in the sale proclamation at whioh 
the property was valued was not adequate. 
Eventually, on the 8th March 1924, the 
sale was set aside, and on the 24th of the 
same month the decree-hplders then ap- 
plied once more to execute their decree. 



1 4 i Patna 



DEONArt WAN v. RAM PflASAD (BucknJfl, J.> 



1926 



They still a,sked to execute the decree in 
precisely the same manner as they had 
asked to executo it in the first instance, 
nuraely, as a rent-decree. Now to this 
the judgment-debtor objected on the 
principal ground that the application was 
more than three years from the date of 
the original decree. As I have said, the 
original decree was dated the 24th July 
1920, the first application for execution 
was dated the 21st May 1923 and this 
last application for execution was dated 
the 34th March of last year. Now, the 
decree-holders have maintained that 
limitation does not apply. They contend 
that the present application should be 
treated as essentially a continuation of 
the preceding application. The Munsif 
of Gaya, after hearing the parties, came 
to the conclusion that this present ap- 
plication was rightly to ba regarded 
as a continuation of the preceding one 
and accordingly, by his order dated 
the 26th July 1921 disallowed the objec- 
tion which had been made to the present 
application for execution. The judgment- 
debtor appealed from this decision to the 
District Judge of Gaya, who on the 18th 
December, confirmed the Munsif *s decision. 
Now, before the District Judge, it would 
neem that not only was this point as to 
the present application being not in con- 
tinuation of the previous application urged 
hut also that the present application was 
not of the same character as the first 
application, i think it is simplest to deal 
with the latter of these two questions 
first. 

It is quite clear that the lirat appli- 
cation for execution was an application to 
execute the decree as, a rent-decree. It 
weeius true that owing to the decision of 
the Munsif at that tims, and owing to the 
fact that he found that there had baen 
some failure of service on the coaharers, 
the actual decree which \yas executed 
was a money -decree, but, as has been 
pointed out by the learned District; Judge, 
the present application for execution is to 
renew the application for execution as a 
rent-deci'66 and not as a money-decroe, 
and 1 presume that the service will ba 
properly effected upon this occasion. I 
am, therefore, unable to see how it can 
he seriously 1 contended that the first and 
the second applications are not the same. 

With regard to the first point : 1 think 
thatib is important to observe that during 
all material periods under consideration 



the decree- hold era had de facto and de jure 
obtained the realization nf their decree. 
It was not until the Sfch March 1921 that 
it was possible for them to have taken 
any further step. According to the posi- 
tion as it then stood their claim had been 
satisfied by a sale of the property. It was 
not until that satisfaction wa.s negatived, 
as I have just mentioned, that he was 
. in a different position. He could have 
taken no step in the interim to apply 
for further execution or for a renewal of 
execution ; for, had he done so, he would 
obviously have been met with the re- 
joinder that as matters stood his decree 
had already been reilized in full satisfac- 
tion ; that he should be prevented when 
the sale was set aside from applying to 
obtain what was justly due to him by 
execution would obviously to my mind be 
a gross inequity. 

fiowever, the learned advocate, who 
lias appeared for the appellant here, has 
suggested that the present application is 
not in law a continuation of the preced- 
ing application. 1 should like, however, 
to point to a case which has been decided 
in this Court: Kanis Zohra v. Si/am 
Risen (l), in which the position which 
obtains here, except in one point, to which 
1 propose presently to refer, was there 
substantially the sime. In that case 
decided by the then Chief Justice (Sir 
Edward Chamier) and Mr. Justice Jwala 
Prasad it would appear that a decree had 
been obtained by the .plain tiff in a suit on 
the 20th June 1905. In August 1906 the 
first application for execution was made. 
It would seem that this application for 
some reason was dismissed ; probably, (al- 
though it is not clear from the report) 
because it was not proceeded with. A 
second application was made; in July 1909 
and the judgment-debtor's immovable 
property was sold in satisfaction of the 
debt on the Hth December 1909. But 
on the 12th February 1910 the sale was 
sec aside at the instance of the judgment- 
debtor ; on what ground 1 do not find it 
stated. On the 10th December 1912 the 
decree-holders made their third and last 
application asking the Court to sell the 
identical property in satisfaction 6f their 
decree (which, of course, .still subsisted) 
which had been sold on the Hth Decem- 
ber 1909. It was contended in that case 

11) [1917] 2 Pat. L. J. 115=1 P. L. wT73^ 
(1917) P. H. 0. C. 133. 



1926 



DEONABAYAN v. BAM PEASAD (Bucknill, J.) 



Palna 145 



by the judgment-debtor, who objected to 
the proposed third application for execu- 
tion, that the application could not bo 
regarded as a continuatien of the preced- 
ing application and that it was out of 
time. The learned Chief Justice, in refer- 
ring to this argument has dealt with the 
position as it appears to him to exist in 
cases- where this same difficulty arises as 
it often must. He remarks : 

" It may often happen that proceedings 
taken upon an application for execution 
remain pending in an original Court 
or appeal for several years and may 
result in an order setting aside a sale of 
immovable property many years after 
the application for execution was presen- 
ted and many years after any of the dates 
indicated in the third column of Art. 182 
of the First Schedule of the Limitation 
Act. This has often been pointed out by 
the Courts, and in order to get over the 
difficulty some Courts have held that a 
subsequent application should be treated 
as an application made in continuation of 
the application made before the sale, and 
other Courts have held that such an appli- 
cation is governed by Art. 181 of the First 
Schedule to the Limitation Act, and that 
the decree-holder is entitled to three 
years from the date on which the sale is 
set aside within which to make a further 
application. It seems certain that the 
Legislature could not have intended that 
further execution of a decree should be 
prevented by the fact that execution pro- 
ceedings remained pending in the Courts 
for many years." 

I think (if I may be permitted to say so) 
that those words express the equitable 
views of the position which should obtain 
in a case such as that which is now before 
us. The learned advocate for the appel- 
lant has suggested that although the re- 
marks, to which I have referred, of the 
then Chief Justice of this Court may be 
applicable to what he calls execution 
under the general law, they are not ap- 
plicable to cases where the execution re- 
lates to suits which fall within the ambit 
-of the Bengal Tenancy Act. He points to 
S. 29 of the Limitation Act and shows 
how it indicates in sntxGL (b) of 01. (l) 
that " nothing in the Limitation Act 
shall affect or alter any period of limi- 
tation specially prescribed for any suit, 
appeal or application by any special or 
local law now or hereafter in force in 
British India/* He points to the Bengal 
1926P/19&20 



Tenancy Act and in particular to Item 
No. 6 of Part III, Sch. III. He observes 
that thero is a period of limitation given. 
I may point out that clearly the period 
which is thero given is one of three years. 
This period refers to an application made 
under the Act in a suit between landlord 
and tenant and not being decreed for a 
sum of money exceeding Rs. 500. Now 
he points out that in this case the sum 
did not exceed Rs. 500. He then refers to 
the times from which the period of limi- 
tation begins to run. They are (l) : the 
date of the decree or order ; or (2), where 
there has been an appeal, the date of the 
final decree or order of the appellate 
Court ; or (3), where there has been a re- 
view of judgment, the dato of the decision 
passed on the review. Ho suggests that 
in the case of setting aside of an execu- 
tion proceeding, (that is to say, in this 
case the setting aside of the sale which 
has taken place in an execution proceed- 
ing), none of these throe categories (except 
perhaps the first) apply. Whether this is 
so or not (that is to say, whether it may 
come under sub-S. (3) or not) does not to 
my mind matter. If there was no pro~ 
vision in this Part III, Sch. Ill, for acaso 
such as that which is before us, then it 
seems clear that S. 29 of the Limitation 
Act has no application and the matter 
falls within the provisions of the ordinary 
law as has been laid down by the late 
Chief Justice of this Court in the case to 
which I have referred. Obviously it 
would be a matter of the greatest hard- 
ship if, in circumstances such as thoso 
which have been disclosed in the present 
case, a decree-holder, not clearly through 
his own fault and certainly not by fraud 
but for one reason or another, should have 
his sale, which has been carried out in 
execution of his decree under which he 
was entitled to recover from the judgment- 
debtor what was due to him, set aside, and 
should on that account be prevented from 
eventually recovering by further execution 
proceedings the sums to which he was 
entitled. In my view, therefore, the Dis- 
trict Judge and the Munsif were quite 
right in the orders which they made. 

The appeal must, therefore, ho dismissed 
with costs. 

Ross, J. I agree. 

Appeal dismissed. 



116 Patna 



SHEO CHABAN v. KISHNO KUER (Bucknill, J.) 



1926 



* A. I. R 1926 Patna 146 

BUCKNILL, J. 

Sheo Charan Singh Decree-holder 
Petitioner. 

v. 

Kishno Kuer and another Judgment- 
d ebtors Opposite Party. 

' Civil Revision No. 95 of 1925, Decided 
on 4th June 1925, from an order of the 
Dist.-J., Gaya, D/- 16th February 1925. 

^ Civil P. CM O. 21, Rr. 66 and 12Auctlon- 
purchawri whether decree-holder or not, cannot be 
compelled to bid higher than or up to the pro- 
claimed pi' Ice. 

There is no legal necessity for a bidder at au 
auction-sale, whether he be a decree-holder at 
whose instance the property is being put up for 
sale or whether he be an outside person, to pur- 
chase the property at the full price at which it 
may have been valued in the sale proclamation. 
On the contrary it would seem that after all 
the value of the property which is thus put up 
to auction is really only that which it will 
actually fetch at that auction assuming of course 
that there is no fraud or malpractice with regard 
to the bidders and that the sale has been reason- 
ably and properly made public. IP.14G,C.2.] 

Brij Kishore Prasad for Petitioner. 
Siva Nandan Raiior Opposite Parly. 

Bucknill, J. This is an application 
in Civil Eevisional Jurisdiction made to 
this Court under somewhat curious cir- 
cumstances. 

The applicant obtained a decree for 
rent against the opposite party here in the 
Court of the Munsif of the 1st Court 
of Gaya. Having obtained his decree 
he then applied for execution. It would 
seem that there were four properties 
which were put up for sale and the Court 
allowed the decree-holder (that is, the 
applicant here) to bid for the properties 
at the sale. There seems no doubt that 
the valuation which was put on the 
properties was, that the first was put at 
Es. 46, the second at Rs. 1,470, the third , 
at Bs. 3,075 and the fourth at Rs. 55. 
There is nothing on the record or before 
me to indicate in any way that the sale 
proclamations were not duly published 
and in fact on the 21st January last the 
sale was proceeded with. It would 
appear from tho record that there were 
other bidders besides the decree-holder. 
Now the Munsif made a curious order on 
the 22nd of January, that is to say, the 
day after the sale. He placed in his 
order-sheet the following words : 



"Decree-holder did not bid for the 
valuation fixed by the Court. The case 
is dismissed, vide order passed on the 
sale proclamation." 

, When we turned to the sale proclama- 
tion we saw that the note or order there 
leads : 

11 The decree-holder does not wish to 
bid up to the value fixed by the Court. 
Tho property on sale is 28*45 acres 
Nakli, Bhaoli and Belagan lands. The 
decree is for Rs. 566-9. He wants* to 
purchase the property for a nominal 
value. This cannot be allowed, as the 
decree-holder did not care to bid for more, 
so I dismiss the case." 

Now it is very difficult to see how on 
the language of these two orders it was 
really altogether open to the Munsif to 
adopt the course which he did. I do 
not know that there is any legal neces- 
sity for a bidder at an auction-sale, 
whether ho be a decree-holder at whose 
instance the property being sold is being 
put up for sale or whether he be an 
outside person, to purchase the property 
at the full price at which it 
may have been valued in the sale procla- 
mation. On the contrary it would 
seem that after all the value of the pro- 
perty which is thus put up to auction is 
really only that which it will actually 
fetch at that auction assuming of course 
that there is no fraud or malpractice 
with regard to tho bidders and that the 
sale has been reasonably and properly 
mado public. I have no doubt that there 
is a good deal of force in what is urged 
by the learned vakil who appeared for 
the opposite party, namely that owing to 
there being a number of sales conducted 
on tho sarno day it was not very feasible 
for tho Munsif to have recorded at great 
length his reasons for his order in the 
order-sheet. There is nothing except the 
suggestion contained in the order which 
is endorsed on the sale proclamation 
where the Munsif says that the decree- 
holder wants to purchase the property for 
a nominal value which leads one to 
suppose that there was anything improper 
or wrong in the way in which the sale had 
been made public* or in the wtfy in which 
the bids took place. On the other hand,, 
there is certainly this to be said in favour 
of the Munsif 's view, namely, that so far 
as the second property was concerned the 
amount which was in feet bid was a very 
trifling one compared with the value 



1926 



HITENDBA SINGH v. MAHABAJADHIBAJ, DARBHANGA Patna 147 



which was put upon the property in 
itself. In that instance it will be 
observed that whilst the value was 
Rs. 1,470 the price bid was Rs. 232. As 
regards the third property put up for sale 
the difference was very much worse ; for, 
there, whilst the value was Rs. 3,075 the 
bid for it was Ks. 231. What I think the 
Munsif should have done was to have 
expressed his views as to the unsatis- 
factory nature of the sale in clearer terms 
and to have given his reasons which 
ought to be substantial ones for declining 
to proceed with the sale. I do not think 
that the reasons which he has given are 
good reasons for dismissing the execution 
case ; for so far as we can see, the decree- 
holder had done nothing really wrong in 
refusing to bid up to the total value 
which had been fixed on the property. 
I think the Munsif's order should have 
been, after having set out his reasons, to 
have ordered that there should be an 
issue of a fresh sale proclamation under 
circumstances of proper publicity which 
would ensure that at the next auction 
when the property should be put up for 
sale there should be suitable bidders. 
Under such conditions no doubt the pro- 
perties would fetch whatever they were 
really worth and what the public was 
ready to pay for them. It may be said witli 
regard to the first and fourth properties 
that the prices which were offered were 
substantially equivalent to the prices at 
which the two properties were valued 
and that is certainly so. At the same 
time these two properties are of very 
little account aggregating just Rs. 101 
in value. It does not, therefore, seem 
desirable to split these two properties 
away from the other two or to regard the 
two properties entirely separately. 

I should mention that after the decision 
by the Munsif it would seem that the 
decree-holder preferred some sort of 
appeal to the District Judge of Gaya. 
What exactly happened before the Dist- 
rict Judge it is difficult to understand. 
From the order-sheet of the 5th February 
there seems to be a note by the serish- 
tadar say ing t that the order complained 
of is not appealable (vide 0. 43, R.I 
and S. 104, Civil P. 0. ). On the same day 
the District Judge minutes : " Put up in 
presence of pleader." No date is men- 
tioned as to when it should be put. But 
on the 16th February we get an order 
of the District Judge : " Pleader absent. 



File." Whether this is tantamount to 
the dismissal of the appeal or whether 
this is tantamount to the adjournment of 
it I do not know. However to my mind 
the conclusion is after all the same, for 
although the matter has come up to this 
Court by way of complaint against what 
appears to have been the serishtadar's 
order of the 5th February, there is also 
a complaint quite clearly made that the 
order which the Munsif passed on the 
22nd January was illegal. I have no 
hesitation in coming to the conclusion 
that the order which was passed by the 
Munsif on the 22nd January is an 
unsatisfactory one. 

It must be set aside and the Munsif 
ordered to re-iristate the execution cases 
to direct that a new sale proclamation 
shall be issued and that such precautions 
should be taken with regard to the 
publicity of the conditions under which 
the sale will be held so as to ensure thab 
a reasonable and proper sale will be held 
upon the date fixed. There will be no 
order for cosfcs in this application. 

Order set aside. 



* A. I. R 1926 Patna 147 

ADAMI AND SEN, JJ. 

Tlitendra Singh and others Peti- 
tioners. 

v. 

Maharajadhiraj of Darbhanga Oppo- 
site Party. 

Application for refund of excess Court - 
fees paid on the Memorandum of Appeal 
in First Appeal No. 206 of 1920, Decided 
on 10th June 1925. 

^ Court-Fees Act (1 of 1870), S. 5 Appeal 
wrongly assessed by Taxing Officer Refund of 
Court- fees cannot be ordered by the High Court. 

The High Court has no power to interfere with 
the order passed by the Taxing Officer regarding 
the amount of Court fees. Kis order though 
wrong, is final and there is no power of appeal, 
review or revision against it : [.4. 1. P. 1923Pana 
137 and A. L R. 1924 Patna 310, Ref.} The appel- 
lants may, however, apply, to the Board of 
Revenue to grant a refund or some alleviation 
in the matter. [P.148,C.l} 

S. M. Mullick and L. K. Jhatoi Peti- 
tioners. 

Sultan Ahmad for the Government. 

Judgment. This is a petition for the 
issue of a certificate by this Court for the 



148 Patna 



G. I. P. $Y. v, DATTI BAM 



1926 



refund of Bs. 2,427-8, paid as Court-fee 
on a Memorandum of Appeal filed before 
this Court. 

The petitioners filed a suit on the 24th 
July 1918, paying a Court-fee of 
Bs. 672-8. They lost the case in the trial 
Court and appealed to this Court, paying 
again the same Court-fee as had been paid 
on the plaint. The matter was reported 
by the Stamp Reporter to the Taxing 
Officer and the Taxing Officer decided 
that the Court-feo due on the Memoran- 
dum of Appeal was Bs. 3,000, and the 
petitioners accordingly paid the deficit. 

When tho appeal came before a Bench 
of this Court the matter of the Court-fee 
payable on the plaint was considered and 
it was decided that that Court-fee of 
Bs. 572-8 was sufficient. 

It is now claimed that by reason of tho 
decision of a Bench of this Court the 
petitioners are entitled to a refund of 
Bs. 2,427-8. 

It has been settled by this Court in a 
series of decisions, namely, Bam Sekhar 
Prasad Singh v. Sheonandan Dubey (1) 
and Sheopujan Eai v. Keslio Prasad 
Singh (2) ; as well as in the case of Ham 
Sumran Prasad v. Gobind Das (in the 
matter of an application in First Appeal 
No. 189 of 1922); that in a case like 
this, this Court has no power or jurisdic- 
tion fco interfere with the order passed by 
the Taxing Cflicer which is final and 
against which there is no f>ower of appeal, 
review or revision. These cases conclude 
bhe matter and prevent us from interfer- 
ing or in any way holding that the 
decision of the Taxing Officer was in- 
Borrect, and his decision must stand. We 
have, therefore, no power to order a refund 
of the Bs. 2,427-8. 

The petitioners are entitled to some 
sympathy owing to the difference in the 
ieeision between the two authorities and 
bhe best that they can do is to move the 
Board of Bevenue to grant a refund or 
some alleviation in the matter, 
* appl iction is rejected. 

Application rejected. 



(1) A. I R. 1928 Pate* 187. 

(2) A. T. K. 1924 Patna 810. 



# A. 1. R. 1926 Patna 148 

ADAMI AND BUCKNILL, JJ. 

0. I. P. Railway Defendant Appel- 
lant. 

v. 

Datti Earn and another Plaintiffs 
Respondents. 

Second Appeal No. 126 of 1923, De- 
cided on 10th July 1925, against the 
decision of the District Judge, Saran, 
D/- iJ4th November 1922. 

5JC (a} Hallways Act, S. 72 Risk Note B is a 
special contract complete in -Itself Company ad- 
mitting loss need not prove it. 

Risk Note B is the ordinary and most usual 
contract for tho carriage of goods entered into 
between merchants and the Railway Companies 
in India. It is very simple in its language; it 
forms a complete special written contract bet- 
ween the consignor and Railway Company. The 
Railway takes the goods at a rate of freight 
lower than the ordinary rate ; in consideration 
for so doing the consignor undertakes to absolve 
the Company from all responsibility for any 
loss, destruction, deterioration of or damage to 
the goods whilst in transit from any cause what- 
ever subject to the following exceptions. These 
exceptions provide that if a whole consignment 
(of one or more complete packages forming part 
of a whole consignment) is lost, then the .Com- 
pany will bo responsible if the loss. is due : (a) to the 
wilful neglect of the Railway administration ; or 
(b) to theft by its servants or agents or (o to 
wilful neglect of its servants or agents. Wilful 
neglect cannot be held under the contract to 
include : (a) fire ; (b) robbery from a running 
train ; (c) any other unforeseen event or accident. 
Therefore in a suit by consignor the onus of 
proving that loss was occasioned under one 
of those exceptions contained in the contract 
under which aloue the Company could be held 
responsible lies upon the plaintiffs. Although it 
is very difficult for consignor to prove what 
happened to the goods when in the Railway's 
custody, the difficulty does not relieve a plaintiff 
from proving negligence on the part of the Rail- 
way's servants. If the Company admits the 
loss, they need not prove it. Though the defen- 
dant Company fails to prove theft from the 
running train, the onus is still on the plaintiff to 
prove neglect or theft by Railway servants. 
The failure to prove theft from running train 
does not give rise to the inference that theft was 
committed by Us servants : Smith Limited v. 
Great Western Hallway Company, (1922) 1 A. C. 
178, Bel on ; 45 Bom. 1201, Dlst. [P 150, C lj 
(b) Hallways Act, S. 72 JRfcfc Note B signed 
Consignor cannot go behind it and sue under 
ordinary law. 

A plaintiff consignor cannot go behind his 
special contract (it-c., Risk Note* B),wi$h the 
Company and sue the Company for damages for 
non -deli very under normal statutory liabilities 
as are imposed upon parties to a contract under 
the Contract Act and upon Railways as carriers 
under the Railways Act. [P. 150 1} 

3dd. Hasan Jan for Appellant. 

B. N. Mitter for Respondents. 



1926 



G. I, P. BY. v. DATTI BAM (Bucknill, J.) 



Patna 149 



Bucknill, J. This was a second ap- 
peal from a decision of the District} 
Judge of Saran, dated 24th November 
1922, by which he modified a decision of 
the Munsif of Chapra, dated 16th March 
of the same year. The appellant was 
the Great Indian Peninsula Railway 
through its agent in India ; this Company 
was the defendant in a suit brought by 
the plaintiffs (the respondents here) 
who are merchants of Chapra to#n. The 
plaintiffs' suit was of familiar type: 
their firm ordered a bale of clofch from 
a Bombay merchant ; it is admitted it 
was duly sent under Bisk Note B and 
was duly placed in the appellant Com- 
pany's custody ; it is also common ground 
that it was never delivered. 

The plaintiffs sued the appellant Com- 
pany for the value of the goods lost 
(Bs. 869-14-9), the freight (Bs. 5-15). and 
loss of profit (Bs. 75) or Bs. 9*8-13-0 in 
all. They averred* that they believed 
that the bale had been lost through tho 
negligence of the appellant Company's 
servants. 

The appellant Company pleaded vari- 
ous defences; they admitted the loss but; 
alleged that it was duo to " running train 
theft," and that, therefore, they were 
absolved by Bisk Note B from liability. 
The appellant Company, however, -called 
no evidence whatever in support of their 
allegation of " running train theft. " 
Whether the plaintiffs' evidence proved 
any negligence on the part of the appel- 
lant Company or not was a matter of 
difference of opinion between the Munsif 
and the District Judge. 

The case, however, proceeded on the 
usual lines ; the plaintiffs tried to prove 
negligence on the part of the defendant 
Company, but all that their sole witness 
could aver was that he supposed that 
the Company's servants must have been 
.negligent Itecause the plaintiffs had never 
received their bale of cloth. I need 
hardly Hay that such an assertion by itself 
is of no value as proof of negligence. The 
Munsif, therefore, holding that the plain- 
tiffs had failed to prove any negligence, 
dismissed their suit with coats. 

The District Judge, when the appeal 
came before Bim, thoughtthat negligence 
should be inferred " from all the circum- 
stances. " He, therefore, reversed the 
Munsif's decision and gave judgment for 
the plaintiffs for the price of the cloth 
with costs, but not for the alleged loss of 



profit which he did not consider had been 
proved. 

It is important to ascertain on what 
grounds the District Judge arrived at 
this conclusion. In the first place he 
points out how impossible it was for the 
plaintiffs to prove what happened to the 
cloth when in the Bailway's custody ; 
but this, though I may say at once that 
it is a constant difficulty in almost every 
case of this type, does not relieve a plain- 
tiff from proving negligence on the part 
of the Biilway's servants, The District 
Judge next remarks that the Company 
alone c.in know what happened to the 
bale whilst in its custody and that, 
therefore, under S. 106 of the Evidence 
Act, the onus is on the Company of prov- 
ing what happened to the goods ; but 
this view is contrary to all the Indian 
and English case-law and authority ; 
vide, e. g., Smith v. The Great Western 
Railway Co. (l) ; the onus of proving 
negligence in these cases lies on the 
plaintiff ; the Bailway Company is not 
bound in law to assist the plaintiff to 
fasten liability on itself. The District 
Judge further observes that the whole 
consignment was lost and that although 
the Bailway pleaded theft on a running 
train, it had made no attempt to prove 
any such theft ; and that therefore the 
onus of avoidance of liability lay, by this 
plea in defence, upon the Company ; it is 
possible that, more closely examined, 
there may be some force in this reason- 
ing, but I propose to deal with this point 
at a later stage. 

This District Judge then states that 
the plaintiffs could get no information 
from the Company as to what had hap- 
pened to the cloth ; but this does not, 
according to the authorities, relievo the 
plaintiffs from proving negligence. The 
District Judge next remarks that, from 
the plaintiffs' evidence and the admitted 
facts in the case, the only reasonable 
conclusion was that the loss was due to 
the negligence of the Company's servants ; 
but I have already pointed out that the 
plaintiffs' testimony was of no evidential 
value ; whilst the only material admis- 
sions in the case were that the bale was 
duly given fto the Company's custody 
and was lost in a running train theft ; 
neither of which circumstances ' threw 
any liability on the Company. 



AToriSs^SrErj. K. B. 
Com. Gas. 247=38 T. L. B. 859. 



150 Patna 



G. I. P. BY. T. DATTI RAM (Bucknill, J.) 



1926 



Lastly, the District Judge seems to 
think that a plaintiff can in some man- 
ner go behind his special contract (i. e., 
Bisk Note B) with the Company and sue 
the Company for damages for non-deli- 
very under such normal statutory liabil- 
ities as are imposed upon parties to a 
contract under the Indian Contract Act 
and upon Railways as carriers under the 
Indian Railways Act ; but this view again 
is, I fear, contrary to the best authority. 
There have been so many decisions on 
cases of this type reported in Indian law 
report* that I think it is as well to try 
and express 'very simply a few of the 
more important features which emerge 
from theiti. 

What is known as Risk Note B is, we 
are informed, the ordinary and most 
usual contract for the carriage of goods 
entered into between merchants and the 
Railway Companies in India. It is very 
simple in its language ; it forms a com- 
plete special written contract between 
the consignor and Railway Company. 
The Railway takes the goods at a rate of 
freight lower than the ordinary rate ; 
in consideration for so doing the con- 
signor undertakes to absolve the Company 
from all responsibility for any loss, des- 
truction, deterioration of or damage to 
the goods whilst in transit from $ny 
cause whatever subject to the following 
exceptions. These exceptions provide 
that if a whole consignment (or one or 
more complete packages) forming part of 
a whole consignment) is lost, then the 
Company will bo responsible if the loss 
is due : (a) to the wilful neglect of the 
Railway administration ; or (b) to theft 
by its servants or agents ; or (c) to wilful 
neglect of its servants or agents. 
Then there is a proviso that wilful neg- 
lect cannot be held under the contract 
to include (a) lire, (b) robbery from a 
running train, (o) any other unforeseen 
event or accident. 

A, then, a merchant, consigns goods by 
B, a Railway Company, to C, another 
merchant, under a contract contained in 
the Risk Note B : the goods are never 
delivered to C. A (or C, acting really on 
A's behalf or as A's principal ; for there 
is no direct contract between B and C) 
sues B for damages for the loss of his (A's) 
goods or, if one so likes to phrase it, for 
damages for breach of contract in that B 
has not delivered the goods to C as B, 
undertook so to do. What is A's cause 



of action ? It is solely on adcfcunt o! a 
breach by B of the contract between 
A and B. What is that contract? It is 
an agreement between A and B reduced 
into writing in the form of Risk Note B. 
What contract must A sue on ? Only 
on the only contract existing between 
A and B, i. e., the Risk Note B. Can A 
ignore the Risk Note and sue B for dam- 
ages for non-delivery basing his claim on 
statutory liabilities imposed generally 
upon those who make contracts or 
particularly upon a Railway Company 
under the provisions of the Indian Con- 
tract Act and the Indian Railways Act 
respectively ? The answer is in the nega- 
tive ; A cannot do so ; he has to base his 
claim on his existing and actual contract 
with B, i. e., the Risk Note B. A then 
sues B upon and for damages for breach 
of the contract, i. e., the Risk Note B 
made between J;hem. B, to take the 
simplest case, "admits the loss in the 
Company's statement of defence. By 
the express terms of tho contract B 
is not liable for loss save under certain 
specific circumstances. Who has to prove 
those circumstances under which B is 
liable ? Clearly not B for it can 
hardly be contemplated seriously that B 
is bound to assist A in fastening respon- 
sibility upon B. So it is A upon whom 
the onus falls of showing that B is res- 
posible for the loss. 

There have, it is true, been cases even 
of quite recent date in which it has 
been held that it is not sufficient for B 
to admit the loss in his statement of 
defence but that B must adduce evidence 
to prove such loss [e. g., Gilabhai Punsi 
v. The East Indian Eailway Company 
(2) and Jamnadas Baldcvadas v. The 
Burma Railieay Company (3): but 
these were decisions given prior to the 
case of Smith v. The Great Western Rai- 
way Company (l) ; and it is difficult to 
understand why B should be called upon 
to prove what he expressly admits : the 
point also has been fully discussed 
and dealt with in this Court in the 
decisions of Mullick, J., and myself in the 
G. I. P. Railway Company v. Jitan Ram 
Nirmal Bam (4), in which We held that 
the contention 'was incapable of support. 
A who may know nothing, and indeed is 
not likely in most instances to know any- 

(2) [1921] 45 Bom. 1201=23 Bom. L. R. 52sT 

(8) [1921] 64 I. C. 295. 

(4) .. I. R 19*3Patna 285. 



G. I. P. BY r, DATTI BAM (BuoknUl, 



1926 

thing, as to how or where his goods 
vanished, or why they were not delivered, 
can aver in his statement of claim what 
he pleases ; he can state, if he wishes, that 
the loss was due to any or all of the ex- 
ceptions under which alone B is liable ; 
but, assuming that B admits the loss, A, 
if he is to be successful in his claim, must 
prove that the loss was in fact due to one 
of the exceptions under which B is res- 
jxmsible. It is often asked how he can 
do so ; it is obviously not an easy task as 
it may well frequently be that B, at the 
mercy of any unscrupulous member of its 
staff or the victim of clandestine theft by 
outsiders, knows no more as to the dis- 
appearance of the goods than A himself : 
A's only chance would appear to lie in 
the administration of searching inter- 
rogatories and tho calling of servants of B 
as his (A's) witnesses. If he proves 
nothing his claim must fail : B need not 
say or do anything beyond admitting the 
loss. 

All the above points have been dealt 
with at length in the recent decision of 
Mullick, J., and myself to which I have 
referred above. But it is frequently ob- 
served that if the law is as above stated 
it seems very hard as the position of A is 
almost hopeless. Tho answer to this 
comment is very simple ; it is that the 
contract is ibself a hard one, but that A 
has a complete remedy in his own hands, 
namely, not to seek to have his goods 
carried at a reduced rate and under the 
terms of such a hard contract as Bisk Note 
B, but pay a higher freight and have his 
goods carried under another form of con- 
tract under the terms of which B has to 
assume a far fuller responsibility. 

I mentioned at an early stage of rny 
judgment that one of the reasons why the 
District Judge thought that the appellant 
should be held responsible was that the 
Bailway Company had pleaded in its de- 
fence that, the loss was due to a running 
train theft but that it made no attempt 
to prove that allegation. There seemed 
at one stage to be some force in the argu- 
ment which was thus put forward in 
support of this part of the District 
Judge's decision. It was contended for 
the respondent that this admission by 
the appellant Company was an admission 
that there had been a theft and that as 
the Company failed to prove that it was 
a theft on a running train (satisfactory 



Patn* 151 



evidence of which would clearly have 
permitted the Company to escape any 
liability) it might be inferred that the 
theft was committed by the appellant's 
agents or servants ; or at any rate, that 
as they had admitted a theft it was in- 
cumbent upon the appellant Company 
to show that it was not theft by their 
own agents or servants but theft either 
as pleaded on a running train or at any 
rate by some outsiders not in their service 
or not their agents. It is, however, 
impossible upon further consideration to 
come to the conclusion that this argu- 
ment is a sound one. In the first place 
the admission or plea is not of theft at 
large but of a specific form of theft, i. e., 
on a running train. In the second place, 
even if the defendant Company failed to 
prove or to adduce any evidence in sup- 
port of such an allegation, it cannot be 
held that a necessary inference must be 
drawn that the theft was committed by 
the Company's servants or agents ; for 
although there might have been a theft, 
it might have been by persons who were 
or were not the servants or agents of the 
Company ; whilst, in order to prove that 
the Company was liable to the plaintiffs 
for the loss, it was primarily necessary 
(the onus being upon the plaintiffs) for 
the plaintiffs to show that the theft 
(whether or not committed on a run- 
ning train) was effected by the Company's 
servants or agents*; and this of course 
the plaintiffs made, and no doubt could 
make, no attempt to do. Lastly it was 
quite unnecessary, according to the 
authorities, for the Eailway Company to 
do anything more than to prove or admit 
the loss ; and, having done that, the 
onus of proving that that loss was occa- 
sioned under one of those exceptions 
contained in the contract under which 
alone the Company could be held res- 
ponsible lies upon the plaintiffs. As a 
matter of fact this very point appears 
to have been "flealt with by Odgfcrs, J., in 
the Madras High Court in the case of 
The Madras and Southern Mali ratta Rail- 
way Co., Ltd. v. B. Krishnaswami Chetty 
(5). That case was one in which there ap- 
peared, superficially, to exist considerably 
greater reasons for drawing an inference 
that the theft had been committed by the 
Bail way Company's servants than would 
be justifiable in the present case now be- 
fore this Court. In the case^ decided hv 

k ~ (5) A. CR,"l945llad. 1387 " ~ ~~ 



152 Patna 



SAHU V. KULDIP &AHAY (RKS, J.) 



1926 



Odgers, J., the Railway Company pleaded 
in defence robbery from a running train 
and actually produced evidence in order 
to try and prove that allegation. The 
Company, however, failed to prove that 
the theft was one committed on a running 
train although they did show that when 
the train carrying the goods arrived at a 
certain station the Guard found the doors 
of one of the covered vans open and the 
plaintiffs' bale of goods missing from it. 
The learned Judge in his decision re- 
marks : "One is very much tempted to 
think that where the Railway Company 
has five or six of its servants travelling in 
the train it is not necessary to look to any 
outside agency to found a case of theft. 
But I cannot say that that has been 
established by evidence. In a similar 
case in B. B. and C. I. Railway Company 
v. Eanchhodlal Chotalal and Co. (6), 
which also-arose on this Risk Note B, the 
learned Judges point out that though the 
defendants have failed to prove theft 
from the running train, the onus is, of 
course, still on the plaintiff to prove 
neglect or theft; by Railway servants. 
This, they point out, should have been 
done before any question is reached of 
robbery from a running train as that, 
namely, robbery from a running train is 
an exception to wilful neglect. It has 
also been established in Narayana Aiyar 
v. The South Indian Railway Company , 
Ltd. (7), that the onus is upon tho 
plaintiff to establish how tho loss ot- de- 
terioration was caused though there the 
Risk Note was Fbrm H. The case in The 
Madras and Southern Mahratta Railway 
Co., Ltd. v. Mattai Subha Rao (8), cited 
by tho learned counsel for the defendant 
does not seem to me to touch the case. I 
am, therefore, with great reluctance, con- 
strained to come to the conclusion that 
the plaintiff has no remedy on this Risk 
Note B on the evidence as it stands. The 
suit must, therefore, be dismissed. The 
question is whether I should inflict costs 
on the plaintiff. The defendant, as 
stated, attempted to prove loss by robbery 
from a running train and assumed that 
onus at the trial and failed. This is, as 
I pointed out, wrong. I do not think 
that the plaintiff suffered any prejudice 
from that procedure, but on the whole, I 

(6) [1919] 48 Bom. TeG^aTBmnTL. R, 779. 

(7) A, I. R. 1924 Mad. 888. 

(8) [1919] 48 Mad. 617=38 M. L. J. 860=(1920) 
M. W. N. 198=11 L. W. 358=28 M. L. T. 49. 



am inclined to dismiss the suit without 
costs." 

The first judgment referred to by Mr. 
Justice Odgers : B B. and C. I. Railway 
Company v. Ranchhodlal Chotalal and 
Co. (6), is precisely to the same effect as 
that of the learned Judge. 

Under these circumstances I fear that 
this appeal must be allowed and the de- 
cree of the District Judge of Saran set 
aside and that of the Munsif of Chapra, 
restored. 

One can only observe once again that, 
although it may seem that the decisions in 
these cases bear hardly upon those whose 
goods are carried by Railway Companies 
in this country under Risk Note B, the 
contract is one which involves those who- 
thus confide their goods for carnage to a 
Railway Company in greatest difficulty in 
recovering compensation in the case of 
their loss ; the substantial remedy against 
such a state of affairs lies, however, in the 
hands of the individual who is in no way 
bound to enter into a contract of such a. 
type which in effect places him at the- 
mercy of the Railway Company with 
which he enters into such an agreement. 

Adami J. I agree. 

Appeal allowed. 



A. I. R. 1926 Patna 152 

Ross, J. 

Itamkh elaivan Sahu and , another De- 
fendants Nos. 1 and 2 -Appellants.' 
v. 

Kuldip Sahay and others Plaintiffs- - 
Respondents. 

Appeal No. 514 of 1922, Decided on 
23rd June 1925, from the appellate de- 
cree of the SulrJ., Arrah, D/-23rd Fe- 
bruary 1922. 

Words "khar'tj jama' 1 import "Independent pro- 
prietor". 

Prima facie tho word kharij jama import that 
the owner ol tho kharij jama laud is an inde- 
pendent proprietor. * [P. 168, C. 2] 

S. M. Mullick and N. N. Sinhalor 
Appellants. t 

Akbari Rai,T. N. Sahay and D. N. 
Verma for Respondents* 

Judgment This is an appeal from 
a decision of the learned Subordinate 
Judge of Arrah affirming a decision of the 



1926 



KAMKHELAWAN SAHU v. KULDIP SAHAY (Boss, J.) 



Patna 153 



Munsif granting a decree to the plaintiffs 
in a suit (so far as is now material) for a 
declaration that they have a right of way 
from their garden, Plot No. 254 of Khafca 
No. 45 to the Local Board road in village 
Kajokher over Plot No 245 belonging to 
Defendants Nos. 1 and 2 which inter- 
venes between the garden and the road. 

Defendant No. 7 is the landlord 
he did not contest the suit. Defendants 
Nos. 1 and 2 who did contest the suit 
had taken settlement of Plot No. 245 
from Defendant No. 7 in 1918. The suit 
was brought in 1920. 

The main contention on behalf of the 
Appellants-Defendants Nos. 1 and 2 is 
that the Courts below have erred in 
holding that tho plaintiffs have acquired 
this right of way by prescription, because 
they are tenants of Defendant No. 7 and 
could neither prescribe against their land- 
lord nor against Defendants Nos. 1 and 2 
who are tenants under the landlord. It 
is contended that for two years befpre 
the suit Plot No. 245 was in settlement 
from the landlord and before that it was 
parti and that consequently the plaintiff 
must have prescribed against their land- 
lord and his tenants and that this is 
impossible in law. This argument rests 
on the fact that in tho record of rights 
the plaintiffs are recorded in tho khatian, 
and ii is argued that, therefore, they 
must be tenants of the landlord. The 
record of rights shows that the plaintiff's 
ancestor purchased tho land ip 1849 and 
that the land is kharij jama. The Munsif 
took the view that this meant that the 
land was excluded and not settled with the 
zemindar at the time of Permanent Set- 
tlement and that the title of the plain- 
tiffs was, therefore, independent of that 
of the . zemindar of the village. The 
learned advocate for the appellants refer- 
red to 8. 3, 01. (3) of the Bengal Tenancy 
Act where "tenant" is defined as "a per- 
son who holds land under another person, 
and is or but for a special contract would 
be, liable to pay rent for that land to 
that person." Keference was also made 
to Qokkul Sahu v. Jodu Nundun Boy (1), 
whei^e it was held that a rent free brah- 
motar sanad operated as a special con- 
tract but for which the brahmotardars 
would be liable to pay rent and that the 
brahmotardars were tenants within the 
meaning of the Act. Now while it is 
quite clear that the mere fact that no 
ill 1890] 17 Cai. 721. 



rent is paid "does not necessarily mean 
that the plaintiffs are not tenants of the 
landlord and while the fact that they are 
entered in the khatian to some extent 
supports the argument of tho appellants, 
yet the case really turns on the effect of 
the entry "kharij jama." In Wilson's 
Glossary "kharij jama" is translated as 
meaning "separated or detached from the 
rental of the state as lands exempt from 
rent or of which the revenue has been 
assigned to individuals or institutions/' 
In N. James 1 Settlement Report of Putna 
"kharij jama" is defined as ' land allowed 
free to zemindars as reward for some 
special service, by a Provincial Governor, 
and so to be distinguished from altamga 
grants." * Prima facie, in my opinion, the 
word imports that the* owner of the kharij 
jama land is an independent proprietor.! 
The land has been included within the' 
zemindari of Defendant No. 7, but it has 
evidently never been resumed and could 
not now be resumed and consequently the 
relation of landlord and tenant does not 
exist between the parties. In his judg- 
ment the learned Subordinate Judge has 
merely referred to the finding of the 
Munsif on this point and has not discus- 
sod the matter further evidently, as ap- 
pears from a later passage in the judg- 
ment, because it was not argued before 
him. I see no convincing ground for 
holding that the Munsif was wrong in 
deciding that tho plaintiffs had a title in- 
dependent of the zemindar with regard 
to this land. This view also finds some 
support from the consideration that the 
landlord did not contest the case. 

It was also argued that the plaintiffs 
had not proved that they used this path 
as of right and that there is no evidence 
of this. The learned Munsif went into 
this part of the case fully and came to 
the conclusion from the nature of the user 
that the enjoyment had been as of right. 
The learned Subordinate Judge disbe- 
lieved the evidence that was given by the 
defendants that the user had been with 
the permission of the landlord and found 
that the evidence of the plaintiffs' wit- 
nesses proved that the user of the passage 
by the plaintiffs was as of right. This 
was an inference which it was open to 
the Courts below to draw and I see no 
reason to doubt the correctness of their 
finding, 

The appeal is dismissed with costs. 

Appeal dismissed. 



154 Patna HEMCHANDKA v. PBEM MAHTO (Kulwant Sahay, J.) 



1926 



% A. I. R. 1926 Patna 154 

MTJLLICK, AG. C. J. AND KULWANT 

SAHAY, J. 

Hcmcli andra Mahto and otli crs Plain- 
tiffs Appellants. 

v. 
Prem Malito Defendant Respondent. 

Letters Patent Appeals Nos. 4 and 5 of 
1924, Decided on 28rd July 1925, against 
the judgment of Das, J. 

(a) Civil P.;C., 8. 47 Partition stilt Decree 
directing separation of plaintiff a share only but 
leaving sharctt of defendants joint Separate suit 
by defendants Inter sc for separate possession of 
shares le not barred. 

If a decree'is passed in a partition suit, the parties 
thereto whether arrayed as defendants or as plain- 
tiffs, are in the position of plaintiffs, 
and in regard to properties that may be allot- 
ted they are exactly in the position of decree- 
holders. In such a case the decree can be execut- 
ed by any party and a separate suit for possession 
is barred by S. 47. But if the partition decree 
merely directed the separation of the shares of the 
plaintiffs in the partition suit and left the shares 
of the defendants joint amongst themselves, the 
defendants cannot execute that decree and there is 
nothing to prevent defendants from bringing a 
fresh suit for partition of the lands jointly allotted 
to them. [P. 155,0.2] 

% (b) Court- fee* Act, S. 7 (Iv) (6) Partition suit 
De f endants need net pay Court- fee Stamp Act, 
S. 2 (16). 

There is nothing in the law which requires a 
defendant in a partition suit to pay Court- fees in 
order to have his share separately allotted to him, 
he is merely U/ask for it in his written statement, 
and it is open to the Court to order Iho shares to 
the defendants in a partition suit to be separated 
as amongst themselves. The decree that is final 1 r 
drawn up in the partition suit has to be stamped 
as an instrument of partition under the Stamp Act 
and except the stamp duty levied on the decree, no 
other duty as Court-fee is payable by the defen- 
dants. 29 Bom. 79, lief. 23 Bom. 188 and 28 Bom. 
184 fllst. [?. 156, C. I] 

Subal Chandra Mazumdai for Appel- 
lants. 
A. B. Mukharji for Respondent. 

Kulwant Sahay, J. Mouza Kaluhar 
in Manbhum was owned by a large num- 
ber of co-sharers. In 1913 a partition suit 
was brought by some of the co-sharers in 
the Court of the Subordinate Judge of 
Purulia which was registered as Suit No. 
219 of 1913. In that suit the present 
plaintiffs and defendants were all arrayed 
as defendants. A preliminary decree was 
passed on compromise on the 12th Sep- 
tember 1914, wherein the shares of all 
the co-sharers were determined. A Com- 
missioner was appointed to effect parti- 
tion by metes and bounds. The Commis- 



sioner effected the partition and made 
allotments to all the co-sharers who were 
parties in the suit ; and in accordance 
with the report and allotments of the 
Commissioner the Court made a final 
decree on the 19th June 1916. The case 
of the plaintiffs in the two suits giving 
rise to the present appeals was that by 
the said partition, lands were separately 
allotted to them. In Suit No. 1172 the 
plaintiffs claimed that 1 bigha, 19 kathas 
out of plot No. 83 of the Commr.'s map 
was separately allotted to them in Suit 
No. 1173, I bigha 2 kathas in plots Nos. 
83 and 83-A was also separately allotted 
to them. Their case is that when they 
wanted to take possession of these lands 
they were obstructed by the present 
defendants who were also defendants in 
the partition suit and hence they brought 
the present suits for declaration of title 
and recovery of possession. The defen- 
dants pleaded that they were not aware 
of the partition alleged by the plaintiffs: 
that there was no compromise in the said 
partition suit that the Commissioner had 
no authority to partition the shares of the 
other co-sharers except those of the plain- 
tiffs in the said partition suit ; and there 
was an objection taken to the effect that 
the present suits were barred under S. 47 
of the Civil P. C. 

The learned Munsif overruled the ob- 
jections of the defendants and made decrees 
in favour of the plaintiffs in the two suits. 
On appeal by the defendants- the learned 
Subordinate Judge confirmed the decrees 
of the Munsif. The Defendant No. 3 there- 
upon came up in second appeal to this 
Court. 

It may be noted that the plaintiffs in 
the two suits were different but the de- 
fendants were the same in both the suits ; 
and the second appeals to this Court were 
by the Defendant No. 3 alone. 

Two points were raised in the -second 
appeal which were heard by Mr. Justice 
Das sitting singly. The first point was 
that the preliminary decree in the parti- 
tion suit, which was a consent decree was 
not binding upon the Defendant No. 3 in- 
asmuch as he was a minor at the time the 
said consent decree was passed but that 
the petition of compromise was not signed 
by his guardian ad litem, and that, there- 
fore, the said decree was wholly void as 
against him. The second point taken was 
that S. 47 of the Civil P. C. was a bar to 
the suit. The learned Judge of this Court 



1926 



HEMCHANDBA v. PREM MAHTO (Kulwant Sahay, J.) Patna 155 



held that the findings of the Subordinate 
Judge were not sufficient or satisfactory 
and that the points raised by the appellant 
could not satisfactorily be determined by 
him, and he accordingly set aside the 
decrees of the Subordinate Judge and 
remanded the case for re-hearing. 

Against this decision of Mr. Justice Das 
the present appeals have been filed by the 
plaintiffs under the Letters Patent. 

As regards the first objection, namely 
that the Defendant No. 3 being a minor, 
and the petition of compromise not being 
signed by any one on his behalf and, 
therefore, the preliminary decree being 
void, it appears that this objection was 
not taken in either of the Courts below. 
From the judgment of the learned Subor- 
dinate Judge it appears that fhe objection 
taken before him was that the guardian 
of the Defendant No 3. did not obtain the 
permission of the Court to enter into the 
compromise and that the decree, there- 
fore, was ultra vires. The learned Sub- 
ordinate Judge disallowed this objection 
on the ground that there was nothing 
on the record to show that the Court had 
not granted permission to the guardian of 
the Defendant No. 3 to compromise the 
suit. The objection taken in this Court 
was different from the objection taken 
before the Subordinate Judge, and, in ray 
opinion, he ought not to be allowed to 
take this objection for the first time in 
second appeal. The decision of this 
question depends on findings of facts which 
the Courts below were not asked to decide. 
Moreover, it is admitted that in the 
final decree which was passed in the par- 
tition suit on the 19th June 1916, there 
was no defect whatsoever. The Defendant 
No. 3 is evidently bound by this final 
decree and, in my opinion, there is no 
substance in this objection and there was 
no necessity cf a remand to enquire into 
this point. 

As regards the second objection, namely, 
the bar of 8. 47 of the, Civil P. C., I am of 
opinion, that the decision of Mr. Justice 
Das is correct. The first Court overruled 
this objection on the ground that the 
plaintiffs in the present suit were defen- 
dants in the previous partition suit and 
they were not the "decree-holders and so 
they could not have got possession in 
execution of the decree. The learned 
Subordinate Judge on appeal observes that 
the effect of the partition decree declar- 
ing what specific lands" were allotted to 



the plaintiffs in the present suits was to 
make that decree a declaratory decree so 
far as they were concerned, and as a de- 
claratory decree is incapable of execution 
the present plaintiffs could not enforce 
the same by execution, and that, there- 
fore, the present suits were not barred by 
the provisions of S. 47 of the Civil P. C. 
Mr. Justice Das rightly points out that 
the view taken by the Courts below was 
incorrect. He observes that if a decree 
is passed in a partition suit, the parties 
thereto whether arrayed as defendants or 
as plaintiffs, are in the position of plain- 
tiffs, and in regard to properties that may 
bo allotted they are exactly in the 
position of decree-holders. No doubt, as 
was observed by Mr. Justice Das, if the 
partition decree merely directed the 
separation of the shares of the plaintiffs 
in the partition suit and left the shares 
of the defendants joint amongst them- 
selves, the defendants could not execute 
that decree and there was nothing to 
prevent those defendants from bringing a 
fresh suit for partition of the lands jointly 
allotted to them. The view, therefore 
taken by the lower Courts was in- 
correct. 

Mr. Justice Das, however, remanded the 
case for a determination as to what was 
the position of the parties in the present 
suits under the final partition decree. In 
my view the materials on the record are 
sufficient to dispose of this question in 
this Court, and the remand seems to be 
unnecessary. The final partition decree 
is on the record, and it directs that a 
decree be passed in accordance with the 
report, map and allotment papers of Babu 
Kadha Ballabh Sarkar, the Commissioner 
appointed in the suit, and that the report, 
map and allotment papers do form a part 
of the decree and it awards costs to the 
plaintiffs in the suit. It is admitted by 
the present plaintiffs, and it also appears 
on reference to the allotments made by 
the Commissioner that the lands now 
claimed by the plaintiffs in the present 
suits were allotted to them in the pre- 
vious partition case and the final decree 
in the partition suit directs that the 
allotments made by the Commissioner be 
confirmed. The present plaintiffs were, 
therefore, in a position to take delivery of 
possession of the lands allotted to them 
by executing the final partition decree. 
It is argued that there is no direction in 



156 Patna 



BAMDHAM v. KEWAL MAM (Das, J.) 



1926 



the final decree for possession being deli- 
vered to the present plaintiffs over the 
lands allotted to them ; but there is no 
such direction even in favour of the plain- 
tiffs in the partition suit. It is clear that 
the decree intended that each of the par- 
ties should take possession in accordance 
with the allotments made by the Commis- 
sioner. As regards the payment of Court- 
fees by the present plaintiffs, who were 
defendants in the partition suit, in order 
to enable them to obtain possession of 
their shares, I see nothing in the law 
which requires a defendant in a partition 
suit to pay Court- fees in order to have 
his share separately allotted to him ; he 
was merely to ask for it in his written 
statement, and it is open to the Court to 
order the shares of the defendants in a 
partition suit to be separated as amongst 
themselves. The decree that is finally 
drawn up in the partition suit has to be 
stamped as an instrument of partition 
under tho Stamp Act and except the 
stamp duty levied on the decree, no other 
duty as Court-fee is payable by the de- 
fendants ; sec Nawah Mir Sadruddln v. 
Nawab Nuruddin (l). A contrary view 
appears to have been taken in Abdul 
Khadar v. JJapubhai (2) and Murarrao v. 
Sitaram (3). But these two cases do not 
appear to bo pure suits for partition. At 
any rate no provision of the law has been 
referred to in theso cases. In the present 
case we find that a final partition decree 
was prepared by the Court and although 
there is nothing on the record to show it, 
it must be presumed that the decree was 
properly passed after payment of the 
stamp (Juty. In my opinion, therefore , 
there is no necessity of a remand in the 
present case and it is clear on reference 
to the final partition decree that it was 
open to the present plaintiffs to obtain 
possession of the lands allotted to them, 
on taking out execution of the decree. 
That being so the present suit for recovery 
of possession of the lands which were ad- 
mittedly allotted to them in the previous 
partition are evidently barred by S. 47 of 
the Civil . C. 

I would, therefore, modify tho order 
passed by Mr. Justice Das and allow the 
second appeals filed in this Court *by the 
Pg^^%JP t .No^3_ftnd dismiss the plaintiffs' 

(1) [1905] <29 Bom. 79^6 Bom. L. B. 834 

(2) 11899] 28 Bom. 188 

(3) [1899] 23 Bom. 184* 



suits altogether. The respondent will get 
his cost? thronghout, 

Mullick, Ag. C. J. I agree. 

Order modified. 



* A. I. R. 1926 Patna 156 

DAS AND ADAMI, JJ. 

Bamdhani Sinyh and others Plain- 
tiffs Appellants. 

v. 

Kewal Mani Bibi aiid others Defen- 
dants Respondents. 

Appeals Nos. 635 and 66 of 1923, Deci- 
ded on 27th July 1925, from a decree 
of the Addl. Dist. J., Pafcna, D/- 16bh 
April 1923. 

^(a) Evidence Act, S 92 Evidence to show non~ 
existence of an agreement Cs admissible. 

Though evidence to vary the terms of an agretT 
ment in writing is not admissible under S. 92, yet 
evidence to show that there is not an -agreement 
at all is admissible. Therefore, it is open to the 
Court to examine the surrounding circumstances 
with a view to enable it to decide whether the 
parties intended to arrive at any agreement in re- 
gard to the subject-matter of the suit : A. I. 72. 
1925 P. C., 75, Foil . [P. 158, C. 1 ? 2] 

(b) Bengal Tenancy Act, S. 29 Tenant vmst. 
prove tJiat he is an occupancy ralyat before Invoic- 
ing aid of S. 29. 

S. 29 only applies to the case of an occupancy 
raiyat, and before invoking the aid of S. 29 the 
tenant must prove that he is an occupancy raiyat 
in regard to the rent claimed lauds. [P. 159, C. 1] 

P. C. Manuk and S. Dayal~~toY Appel- 
lants. 

Hasan Imam, Brijkishore Prasad and 
-S. M. Mullick for Eespondents. 

Das, J. On the fact^s found by the 
learned Additional District Judge he was 
right in passing the decrees which he did 
pass. Two questions have been argued 
before us by Mr. Manuk on behalf of the 
defendants-appellants : first* that the in- 
clusion of 1 oottah of land in Patna city 
was a fraud on the registration law and 
that the registration obtained by its 
means was invalid ; and, secondly, that 
the enhancement of rent in the leases 
which were also the basis of the suits 
constituted an infringement of 8. 29 t of the 
Bengal Tenancy Act and cannot be sup- 
ported by a Court of law. 

I will first consider the point in regard 
to the registration. The written state- 
ment' raises the following case : " In 
order jjtoly to get the registration made at 



1926 



BAMDHANI v. KBWAL MANX (Das, J.) 



Patna 157 



Jhauganj, an imaginary plot of land in 
Mohalla Diwan in bho cifcy of Patna was 
included in the patta and kabuliyat. 
These defendants did not take in settle- 
ment the land in Mohalla Diwan in the 
city of Patna, nor was any contract 
made with regard to the settlement there- 
of, nor did the defendants ever get pos- 
session of the same. Hence the aforesaid 
kahuliyat is illegal, void and inoperative, 
and the same cannot he binding on the 
-defendants. The plaintiff's suit on the 
basis of patta and kabuliyat like this is 
not tenable and is fit to be dismissed at 
once." The Court of first instance found 
that the plot of land in Mohalla Diwan in 
tha city of Patna did not exist and in 
this view he came to the conclusion that 
the inclusion of ttiis property was a fraud 
on tho registration law. The lower ap- 
pellate Court has reversed the finding of 
fact of the Court of first instance 011 this 
point. The learned Judge says as fol- 
lows : " I have examined tho evidence on 
the point and the case-law relating to the 
matter and am disposed to differ from the 
finding of the learned Munsif and to hold 
that the kabuliyats were valid, and were 
not fraudulent documents, and had been 
entered into with the knowledge and 
consent of both the parties and that tho 
properties were real existing properties 
and not fictitious or non existent. This 
appears to be clear from the depositions 
of the three consenting defendants them- 
selves given before the Court below. Tho 
finding that tho plot of land in Mohalla 
Diwan is "existing property and not ficti- 
tious or non-existent" is a finding of fact 
which is binding on us in second appeal. 

This is not disputed by Mr. Manuk ; 
but he contends that the learned' Judge 
should have considered the other point 
raised by him, namely, whether there was 
any intention on the part of the parties 
to deal with the plot of land in Mohalla 
Diwan. Now, in my opinion, the ques- 
tion was not raised in this form in the 
written statement. The whole point made 
in the written statement is that "an ima- 
ginary plot of land in Mohalla Diwan in 
the city of Patna was i icluded in the 
patta wid kabuliyat* There is no sugges- 
tion that the parties did not intend to 
deal with this property on the assump- 
tion that it did exist. Mr. Manuk relies- 
on the judgment of the Court of first in- 
stance and contends that that Court ex- 
pressly found that the parties cUd not 



intend to deal with this property ; but I 
can find no support for this argument in 
the judgment of the learned Munsif, He 
no doubt refers to the contention on the 
part of the defendants that they never got 
possession of the Diwan Mohalla proper- 
ties and that it was never intended that 
they should get possession of them and 
that these properties were included only 
to facilitate registration at Jhauganj. But 
the finding of the learned Munsif is that 
"these areas are only fictitious. 11 That this 
was* the only finding will appear from 
the cases to which he refers and discusses. 
In dealing with these cases, which were 
obviously cited on behalf of the plaintiffs, 
he says as follows : "In the first of these 
cases it transpired later that the execu- 
tants' interest had become extinguished 
in the property mortgaged, and without 
knowledge of this the parties entered into 
a bona fide mortgage of same. In the 
second case the existence of the property 
mortgaged was not denied. In the third 
it was actually found the mortgagor 'in- 
tended this small property should also be 
a security for the mortgage debt. Thus 
in none the question arose of the non-ex- 
istence of the property;" and he concludes 
as 'follows : ' In the present case it ig 
plainly alleged in the written statement 
the property in Diwan Mohalla was a 
fictitious one. The kabuliyats in the i'e- 
citals in them make no mention of them, 
and hence it was incumbent on plaintiff 
to adduce some evidence of existence of 
those properties. In absence of such evi- 
dence the case is covered by the case of 
Harendra Lai Roy Choivdhuri v. Hart 
Dasi Debi (l) and the registration of Jhau- 
ganj is invalid and plaintiff cannot tatce 
advantage of these kabuliyats." 

It will appear from the judgment of the 
learned Munsif that tho only question 
which he intended to try and did try, was 
whether the properties alleged to be ficti- 
tious by the defendants did exist. He 
found that they did not exist and he held 
that the inclusion of those properties was 
a fraud on the registration law^ 

That being so, how are we entitled npw 
in second appeal to go into tho question 
of the intention of the parties ? It has 
been contended on behalf of the respon- 
dents that having regard to S. 92 of the 

(1) [1914] 41 Cal. 972=41 L A. 110=27 M.L.J. 
80= (1914) M. W. N. 462=16 M. L. T. 6= 
18 C. W. N. 817=19 C. L J. 484=16 Bom. 
L. B. 400=12 A. L. J. 774=1 L. W. 1050 
(P. 0.) 



158 Patna 



BAMDHANI v. KEWAL MANI (Das, J.) 



1926 



Evidence Act the Court U not entitled to 
go into the question of intention. I am 
unahle to agree with this contention.* The 
authorities establish that though evidence 
to vary the terms of an agreement in 
writing is not admissible, yet evidence to 
show that there is not an agreement at all 
is admissible. In Pym v. Campbell (2;, 
Brie, J., said as follows : " The point 
made is that this is a written agreement, 
absolute on the face of it, and that evi- 
dence was admitted to 'show it was con- 
ditional, and if that had been so, it would 
have been wrong. But I am of opinion 
that the evidence showed that in fact 
there was never any agreement at all. 
The production of a paper purporting to 
be an agreement by a party, with his 
signature attached, affords a strong pre- 
sumption that it is his written agreement, 
and, if in fact he did sign the paper animo 
contrahendi, the terms contained in it are 
conclusive and cannot be varied by parol 
evidence ; but in the present case the 
defence begins one step earlier: the parties 
met and expressly utated to each other 
that though for convenience they would 
then sign the memorandum of the terms 
yet they were not to sign it as an agree- 
ment until A was consulted. I grant the 
risk that such a defence may bo set up 
without ground ; and I agree that a jury 
sHould, therefore, always look on such a 
defence with suspicion; but, if it be proved 
that in fact the paper was signed with 
the express intention that it should not be 
an agreement the other party cannot fix it 
as an agreement upon those so signing. The 
distinction in point of law is that evidence 
to vary the terms of an agreement in writ- 
ing is not admissible, but evidence to 
show that there is not an agreement at 
all is admissible." And Lord Campbell 
said : " 1 agree. No addition to, or 
variation from, the terms of a written 
contract can be made by parol ; but in 
this case the defence was that there never 
was any agreement entered into." This 
case was followed in Guddalur Buthna v. 
Kunnattur Arumuqa (3). The last-mon- 
mentioned case was decided without 
reference to the Indian Evidence Act and 
probably before the Evidence Act came 
into operation. But the principle of that 
cjiso was affirmed by the Judicial Com- 
mittee in a judgment delivered by it on 

~~(2U1856] 6 El. audBl. 870=25 L. J., Q. B. 277 

=2 Jur. N. S. 611=4 W. R. 528. 
(3) 7 M. H. C. 180. 



the 5th of December 1924. So far as I 
know that case has not been reported ; 
but the judgment has been pronounced in 
Privy Council Appeals Nos. 21, 31 and 32 
of 1923 [Baijnath Singh v. Vally Maho- 
med Hajee Abba (4)1 . In delivering the 
judgment of the Board Sir Lawrence 
Jenkins -said as follows : " It is true, as 
was laid down in Balkishen Das v. Legge 
(5) that under S. 92 of the Indian Evi- 
dence Act, as between the parties to an 
instrument, oral evidence of intention is 
not admissible for the purpose, either of 
construing deeds or of proving the inten- 
tion of the parties. But in the view their 
Lordships tako of the circumstances of 
this case the section and the ruling have 
no application to it." The learned Judge 
then proceeded to say as follows : " The 
preamble to the Evidence Act recites that 
it is expedient to consolidate, define and 
amend the Law of Evidence ' and S. 92 
merely prescribes a rule of evidence ; it 
does not fetter the Court's power to 
arrive at the true meaning and effect of a. 
transaction in the light of all the sur- 
rounding circumstances." I am of opinion,; 
therefore, that it was open to the Court 
to examine the surrounding circumstances 
with a view to enable it to decide whe- 
ther the parties intended to arrive at any 
agreement in regard to the Diwan 
Mohalla property ; but in the view which 
I take of this case the question is a ques- 
tion of fact and should have been raised by 
the defendants specifically. It should cer- 
tainly have been raised by them in the 
Courts below. The judgment of the lear- 
ned Munsif is silent on this point and so 
is the judgment of the lower appellate 
Court. I must, therefore, hold that the 
only question which was raised by the 
defendants in the Courts below and the 
only question discussed by the Courts 
below is whether these properties were 
fictitious properties or not. That being 
so, it is not open to us to enter into the 
question whether the parties intended to- 
enter into an agreement with regard to 
these lands. 

The next question relates to the appli- 
cablity of S. 29 of the Bengal Tenancy Act. 
Now, in order to understand the point, it 
ought to be pointed out that the regis- 
tered kabuliyats were executed in 1322. 
By these kabuliyats the defendants took 

4) A. I. B. 1925 P. C. 75. 

5) [1900] 22 All. 149=27 I. A. 58=4 C. W. N. 
158=2 Bom. L. R 523=7 Sar. 601 (P. 0.). 



(4) 
(5) 



1926 



MD. SADIQ v. BASGIT SAH 



Patna 159 



leases of the lands comprised in the 
fcabuliyats from 1323 to 1329 at a rent of 
Ks. 5 per bigha. It appears, however, 
that the defendants were actually in 
possession of the properties comprised in 
the leases ever since 1301 and that they 
were paying a rent of Rs 3 per bigha. 
It is, therefore, contended on behalf of 
the defendants that there was an en- 
hancement of rent by the fresh arrange- 
ment of 1322 and that the rent .was 
enhanced so as to exceed by more than 
2 annas in the rupee the rent previously 
payable by the raiyat. 

S. 29, it will be noticed, only applies to 
the case of an occupancy raiyat and before 
invoking the aid of S. 29, the tenant must 
prove that ho is an occupancy raiyat in 
regard to the rent-claimed lands. Now 
these lands are admittedly diara lands 
and S. 180 provides that a raiyat who 
holds land of the kind known as char or 
diara shall not acquire a right of occu- 
pancy until he has held the land in 
question for 12 continuous years ; and fche 
section further provides that until he 
acquires a right of occupancy in the land, 
he shall be able to pay such rent for his 
holding as may bo agreed on between him 
and his landlord. 

On the admitted fact}, therefore, there 
is no room for the application of S. 29 of 
the Bengal Tenancy Act unless the 
defendants establish that they had hold 
the lands in question for twelve con- 
tinuous years. The learned Judge in the 
Court below accepted the contention of 
the plaintiffs that the defendants have 
not " been successful in proving continu- 
ous possession." Mr. Manuk in this 
Court 'contends that the learned Judge 
should have considered the evidence with 
a view to find out whether the defen- 
dants have been in continuous pos- 
session of any portion of the land 
comprised in the lease. Ho says that it 
may be that he has not been in continu- 
ous possession for 12 years of the entire 
block of land comprised in his lease ; but 
he contends that it is possible that he 
may have been in possession for 12 con- 
tinuous years of some portion of the land 
and that Inasmuch as the learned Addi- 
tional District Judge has not dealt with 
this point we should remand the case to 
him to enable him to decide the point. 
The onus of establishing an exception 
under S. 180 of the Bengal Tenancy Act 
was upon the defendants, and it was for 



them to make a specific point in regard to 
the applicability of S. 29 in the written 
statement ; but they have not made such 
a case in the written statement. No 
doubt the Courts examined the conten- 
tions in regard to the applicability of 
S. 29 but a new point is made before 
us, namely, that although the defen- 
dants may have failed to prove that 
they were in possession for 12 con- 
tinuous years of the entire block of laud, 
they may succeed in proving that they 
were in possession for 12 continuous 
years of some portion of the land. I find 
that the learned Munsif in the course of 
his judgment says : " The defendants 
themselves could not give verbally what 
area they were in possession of in which 
year." It is extremely unlikely that a 
remand would be productive of any good ; 
for the defendants have no evidence on 
the point and the papers of the land- 
lords could not possibly identify the lands 
which have been in the possession of the 
defendants, the lands being subject to 
inundation and there being no Record of 
Rights in regard to them. Having regard 
to all these facts and especially having 
regard to the fact that the defendants 
have not made out a case nnder S. 29, 
I must decline to remand the cases to the 
lower Appellate Court to enable it to 
decide tho point contended heforo us. 

I must dismiss these appeals with 
costs. 

Adami, J. I agree. 

Appeal* 



A. I. R. 1926 Patna 15 

BUCKNILL, J. 

Mohammad Sadiq Appellant. 

v. 
Dasgit Sah and others Respondents. 

Appeal No. 1321 of 1922, Decided orr 
10th June 1925 from the appellate 
decree of the Sub-J., Motihari, D/- 19th 
September 19:42. 

Civil P. C., 0. 26, B. 12I/ Commissioner's 
report fs unsatisfactory anotlier Commissioner 
slwuld be appointed. 

The fact that the Commissioner had made a 
muddle of his enquiry should not in any way 
prejudice any party. If it is found that the 
Commissioner's work is unsatisfactory, the- 
proper procedure is to appoint another commis- 
sioner who would carry out the work more 



160 Patna 



JOGENDRA PRASAD v. MANGAL PRASAD 



1926 



Hatififaatorily and not to give a finding 
<:onHidering that report of the Commissioner 
only. [P 160, C 1, 2] 

Hareswar Prasad for Appellant. 

Judgment. This is a second appeal. 
It is a very simple matter although it 
is unfortunate that owing to some 
apparent misunderstanding there have 
already been no less than three or four 
judgments written in connexion with 
the matter. The appellant, who was the 
plaintiff, brought a suit for a declaration 
of his raiyati title to a certain plot of 
land and for recovery of possession 
thereof, Now, apparently, when the 
case came before the Hunsif in the first 
instance ho decided in the plaintiff's 
favour. But on appeal to the Subor- 
dinate Judge, it would seem that, on the 
ground that the Commissioner who had 
been appointed to ascertain the proper 
demarcation and site of the property in 
question had not been cross-examined, 
the Munsifs' judgment was set aside and 
that the matter was remanded to the 
Munsif in order that the commissioner 
might be cross-examined. The matter 
went back to the Munsif and the Munsif 
after having had the Commissioner 
cross-examined, on this occasion dismis- 
sed tho plaintiff's case. The ground 
upon which ho dismissed the case 
-appears, so far as 1 can see, to have been 
that the Commissioner had made some 
mistakes in the way in which he had set 
about his work, and in consequence, tho 
Munsif thought that the plaintiff had 
'failed to prove his case, he, apparently, 
not relying upon any evidence other 
than that of the Commissioner. The 
Munsif then sent the matter back to the 
appellate Court with his recommendation 
and the Subordinate Judge came 
to tho conclusion that the Munsifs 
finding was correct. Again, so far as I 
can see, the ground for this decision was 
simply that the Commissioner had inado 
a bungle of his investigation. Now, this 
application came up for admission in 
second appeal, and on its admission it 
seems to have been pointed out that the 
fact that tho Commissioner had made a 
muddle of his enquiry should not in 
any way have prejudiced the plaintiff's 
position in the case. I have no doubt 
that what the Munsif should have done, 
if he found that tho Commissioner's 
work was unsatisfactory, was to have 
.appointed another Commissioner who 



would carry out the work more satis- 
factorily or, at any rate, in a manner 
intelligible and suitable to the Munsifs 
understanding. In these circumstances, 
I think it is clear that this appeal must 
be allowed with costs and that the case 
must again unfortunately go back to the 
Mutrsif to be -re-tried ; and, so far as I 
can see, it would be highly desirable that 
another Cmmissioner should be 
appointed to make such observations and 
demarcations as are necessary to show 
whether or not the plaintiff's claim is 
sustainable. The learned vakil who at 
one time appeared for the respondents 
to this appeal has appeared in Court this 
morning and has informed me that he 
has no instructions with regard to this 
matter. The respondents, therefore, to 
this appeal have not been represented 
before me. 

Appeal allowed. 

* A. I. R. 1926 Patna 160 

MULLICK, AC, C. J. AND KULWANT 

SAHAY, J. 

Jofiendra, Prasad Narayaii Sin7ia 
Defendant Appellant, 
v. 

Manyal Prasad Sahn Plaintiff Res- 
pondent. 

Misc. Appeal No. 188 of 1924, Decided 
on 24th July 1925, from an order of the 
Sub-J., Muzafferpur, D/- 2nd August 1924. 

(a) Limitation Act, Art. 182 Application ttwugh 
In accordance with law nay be defective for some 
other reason. 

An application may be in accordance with law 
and yet tho applicant may not be entitled to any 
relief on account of circumstances other than there 
being any defect in the application itself. 

[P 161 C 2] 

(6) Limitation Act, Art. IB2 Rules 11-14 of 
O. 21 compiled with Application Is in accordance 
with law. 

An application is one made in accordance with 
law if the particulars required by 0. 21, Rr. 11 to 
14 of the Civil P. C. are supplied ; A. I. R. 1924 
Patna 23, Poll [P 161 2] 

%: (c) Limitation Act, Art. 182 Is-sw^ of notice 
under 0. 21, R. 22, is stcp-ln-aid though the appli- 
cation f <! not in accordance with law. 

Even if an application for execution be not one 
in accordance with law a notice issued under 0. 21, 
R. 22, upon that application would be a step which 
would give a fresh start lor limitation : 25 Cat. 594 
(F. B.) and 15 All. 84 (F. B.), Pel on. [P 163 C 1] 

JanakKisliorc and A. P. Upadhya fo* 
Appellant. 

K. P. Jayaswal, C. J. Bannerji t fif. M. 
Gupta. S. K. Gupta, S. K. Mitra and 
M. C. DntlioT Bespondent. 



1928 



JOGENDSA v. MANGAL PRASAD (Kulwant Sah*y t J.), Patna 161 



Kulwant Sahay, J. This is an ap- 
peal by the judgment-debtors against an 
order of the Subordinate Judge of 
Muzaffarpur dismissing their objection to 
the execution of a desrea on the ground 
of limitation. 

The decree which wa^ a mortgage-decree 
was passed on the 25bh January 1918 in 
favour of two brothers Gauri Prasad and 
Mangal Prasad and on the 25th January 
1921 an application was made for exe- 
cution 1 of the decree by Mangal Prasad 
alone on the allegation that by a parti- 
tion between the two brothers Mangal 
Prasad was entitled to the entire amount 
covered by the decree. Notice of this 
application was given to the judgment- 
debtors who filed an objection on the 
ground that Mangal Prasad alone was not 
entitled to execute the whole decree. 

The learned Subordinate Judge, it ap- 
pears, ultimately allowed the objection. 
He held r that under a private partition 
between the parties Mangal Prasad was 
entitled to only one-third of the amount 
covered by the decree, and that the re- 
maining two-thirds had been allotted 
. to his minor sons who were living under 
the guardianship of their mother. 

This objection was allowed by the 
Subordinate Judge on the 5th September 
1923. On the 10th September 1923 
Mangal Prasad applied to the Executing 
Court to strike off the execution case 
saying that he would file a fresh appli- 
cation in continuation of -tho first appli- 
cation and the execution case was struck 
off on the 20th September 1923. 

The present application was then filed 
on the 21st September 1923 by Mangal 
Prasad and his two minor sons. Objection 
has been taken to this application by the 
judgment-debtors on the ground that the 
present application cannot be treated as 
a continuation of the first application and 
if it be treated as a fresh application then 
it is barred by limitation. 

The learned Subordinate Judge has 
disallowed this objection holding that the 
present application must be treated as 
one in continuation of the first applica- 
tion. He has also held that the first 
aflpfclioation, was an application in accor- 
dance with law and that, therefore, the 
present application which was filed with- 
in three years from the first application 
was also within time. He further found 
that limitation was saved by reason of 
fche explanation to Art. 182 of the Limi- 
1926 P/21 & 22 



tafcion Aot inasmuch as as an application 
by any one of joint decree holders shall 
take effect in favour of all of them. He 
accordingly disallowed the objection of 
the judgment-debtors and they have come 
up in appeal to this Court. 

In my opinion, the decision of the learn- 
ed Subordinate Judge appears to be 
correct. The first application which was 
filed on the 25th January 19il must be 
treated as an application in accordance 
with law. It fulfils all the requirements 
of 0. 21, Br. 11 to 14 of the Civil P. C. 
It has deen contended on behalf of the 
judgment-debtors that this application 
was dismissed on the ground that it was- 
not an application upon which any relief 
could be granted to the decree- holders and] 
that, therefore, it could not be treated as- 
an application in accordance with law, 
but an application may bo in accordance 
with law and yet the applicant may not 
bo entitled to any relief on account of 
circumstances other than thore boing any 
defect in the application itself. It has 
been held in Bhagwat Prashad Singh v. 
Dwcirakct Prosad Sinyh (l) that under 
Art. 182, 01. (5) of tho Limitation Act, an 
application is one made in accordance 
with law if the particulars required by 
O. 21, Rr. 11 to 14 of the Civil. P. C. are 
supplied. In the present case, we find 
that all the particulars required to bo 
stated in an application for execution 
by Rr. 11 to 14 of 0. 21 had been given 
in the first application. The 'application 
of the 25th January 1921 must, therefore, 
be treated as an application made in ac- 
cordance with law. 

The present application, which was filed 
on tho 21st September 1923 was admit- 
tedly within three years of tho first appli- 
cation and, was, therefore, within time. 
Furthermore it appears that on the first 
application an order had been made for 
issue of ^iotice under 0. 21, R. 22. 
Under 01. (6) of Art. 182 a fresh period 
of limitation began to run from date of 
the issue of that notice. That notice was 
issued on 23rd May 1921 and, therefore, 
the issue of the notice also saves' the pres- 
ent application from limitation. 

Even if it be contended that the first 
application was not in accordance with 
law the issue of the notice would give a 
fresh start for limitation. In Gopal 
Chunder Manna v. Cfosain Das Kalay (2), 

(1) A. I. E. 1924 Patna 23. 

(2) [1898] 25 Cal. 594=2 C. W. N. 556 (P. B.). 



162 Patna 



SUBEDAB v. BAMBILAS (Boss, J.) 



1926 



a Full Bench of the Calcutta High Court 
held that even if the application for exe- 
cution he not one in accordance with law 
-a notice issued under 0. 21, B. 22 upon 
that application would he a step which 
would give a fresh start for limitation. 
The same view was taken hy a Full 
Bench of the Allahabad High Court in 
Dhonkal Si/if/h v. PhaJckar Singh (3). In 
this view of the case it is not necessary to 
consider whether the present application 
can be taken to be one in continuation 
of the first, application. Mr. Jayaswal, 
who appears for the respondent has not 
laid any stress upon this point and it is 
not necessary to consider it. 

In my opinion, there is no substance in 
the appeal and it must be dismissed with 
costs. 

Mullick, Ag. C. J. I agree. 

Appeal dismissed. 
" (3) [1B93J 15 All. 84 1893 A.' W, NT36\FrB). 



A I R 1926 Patna 162 

D.VS AND BOSS, JJ. 

Subtdar Jlai and another Defendants 
Appellants. 

v. 

Rambilas llai and others Plaintiffs 
and Defendants Respondents. 

Appeal No. 1062 of 1922, Decided on 
2nd June 1925, from tho appellate decree 
of the Dist. J., Hhahabad, D/- 22nd May 
1022. 

Bengal Estates Partition Act, S. 119 Partition 
proceedings are not binding on fininrr-]ifder even 
though hi 1 h (me of tlie proprietors. 

If, in the course of :t partition proceeding any 
quention ariHCH aw to tlio extent or otherwise of tho 
tenure, as the tenure-holder is not in general a 
party to the proceedings, he IK not affected in any 
manner by the decision which may be arrived at 
by the revenue authorities for the purposes of par- 
tition between the proprietors. Even if therefore 
the tenure is set up by a person who is also a pro- 
prietor, and i* a party to the proceedings, it would 
be unreasonable to hold that a party who has ap- 
peared before the revenue authorities in his char- 
acter as a proprietor, should bo finally concluded 
by a decision upon a question of title, which would 
not have been binding upon him if he had been a 
stranger to the proceedings. 87 Cal Gf>2 Foil ; and 
16 C. W. N. 639, Ref. [P 163, 1] 

Sultan Ahmed and Manohar Lai for 
Appellants. 

S. 3d. Mulliclc and P. K. Mukl\erjitor 
.Bespondents. 



Rof, J. The plaintiffs brought 
suit on the allegation that 25 bigbas of 
land was their ancestral guzashta kashfc' 
from before the time when in 1909 their 
ancestor acquired a half-anna share in the 
proprietary interest in the village. In 
certain partition proceedings the Deputy 
Collector recorded this land as the plain- 
tiffs' kasht land ; but on appeal the Col-, 
lector ordered that the land should be 
recorded in the khasra as zerait and the 
partition was made accordingly. The 
plaintiffs claimed a declaration that the 
land was their kasht land and possession 
and mesne profits. The defence was that 
the land was zerait and that the suit was 
barred by tho provisions of the Estates 
Partition Act. 

The learned Subordinate Judge held 
that the plaintiffs had failed to prove 
their title ; and, further, that S. 119 of 
tho Estates Partition Act barred the suit. 
The learned District Judge reversed both 
these findings. Ho held that the plain- 
tiffs ha.l proved that they had possessed 
this land as raiyats at least since 1899 
and that they had acquired tho status of 
occupancy raiyats in the land. With 
regard to S. 119 he was of opinion that 
as the order in the partition case which 
was contested in this suit was made under 
Chapter VI of the Act, S. 119 had no appli- 
cation, and that there was nothing in the 
Act that barred the suit which was in- 
stituted by the plaintiffs in their capa- 
city of raiyats. The defendants have 
appealed. 

With regard to the first finding it was 
contended by tho learned Counsel for the 
appellants that inasmuch as the land 
was under water up to 1908, it was im- 
possible that the plaintiffs could have ac- 
quired occupancy rights in the same. 
Now there is only one piece of evidence 
which refers to the land being under 
water, as appears from the judgment of 
the Subordinate Judge, viz., Ex. A, a 
written statement by the mortgagee in a 
suit for redemption. The learned District 
Judge has dealt with this evidence and 
has held that a recital of this kind is of 
no value as evidence of fact. He was en- 
titled to hold that opinion and in that 
view no objection can be talcen to his 
finding of fact as to the status of the 
plaintiffs. 

The substantial question in the appeal 
is as to the effect of S. 119 of the Estates 
Partition Act. Two cases were referred 



1926 



SUBEDAR v. BAMBILAS (Boss, J.) 



Patna 163 



to by tji$ learned counsel for tho appel- 
lants : 'Chaudhary Kesari Sahai Singh v. 
Hitnarayan .Singh (l) ; and Anil Kumar 
Biswas v. Bash Nolian Salia (2). Neither 
of these cases deals with an order under 
Chapter VI. They were both cases bet- 
ween proprietors and the substance of 
*$he partition was directly in issue in 
"both. S. 119 clearly barred the plaintiff's 
suit in both cases and these authorities 
'throw no light on the present case where 
'the plaintiffs are nob asserting any right 
as proprietors but are claiming a raiyati 
right acquired long before they became 
^proprietors. On the other hand in Janki 
NatK Chowdhry v. AV// Naraiii Boy 
<Ghoiodhry (3), the question was as to a 
-xniras right held by one who was also a 
.proprietor in the village. In that case 
also it was argued that there had been a 
-decision of the revenue authorities 
^against the plaintiff as to the reality and 
-extent of his tenure and that it was not 
open to him to have the matter re-agitated 
in the civil Court. On this argument 
liheir Lordships observed as follows : * No 
iuthority has been shown in support of 
bhis proposition. On the other hand, 
there are obvious and weighty reasons 
upon which sucli a contention ought to be 
iverruled. It is manifest that if, in the 
course of- a partition proceeding, under 
Act VIII of 1876, any question arises as 
to the extent or otherwise of the tenure, 
as the tenure holder is not a party to the 
proceedings, he is not affected in any 
manner by the decision which miy be 
arrived at by the revenue authorities for 
the purposes of partition between the 
proprietors. It is merely -an accident 
that, in the case before us, the tenure is 
set up by a person who is also a proprie- 
tor and is a party to the proceedings in 
bhat character. It would, in our opinion, 
be unreasonable to hold that a party who 
has appeared before the revenue authori- 
ties in his character as a proprietor, 
should be finally concluded by a decision 
upon a question of title, which would not 
have been binding upon him if he hacT 
been a stranger to the proceedings." 
This language applies precisely to the 
present ca^e. Similarly in Lakhi Chou m 
dhry v. A kloo Jha (4), the question was 
^discussed with regard to an order passed 



(1) [1920] 1 P. L. T. 507. 
<2) A. I. R. 1924 Oal. 245. 
(8) [1910J 37 Oal. 662=15 C. W. N. 46. 
.<4) [1912] 16 C. W. N. 689. 



under Chapter VI and their Lordships 
said : "In thejsecond place S. 119 of the 
Estates Partition Act specifies the orders 
of the revenue authorities which cannot 
be questioned by a suit in any civil Court. 
An order under S. 45 or S. 46 is not ouoof 
the orders mentioned in S. 119. The 
reason for the exclusion is obvious. The 
determination by tho revenue authorities 
is of a summary character and it cannot 
be taken to conclude finally a question of 
title between one of the proprietors and a 
stranger to tho proceedings." The same 
view has been taken in this Court in 
Baldeo Sahi v. Brajiiaudan Sahi (5). A 
partition deals with tho rights of proprie- 
tors and, so far as raiyati lands are con- 
cerned, they are only entitled to a distri- 
bution of the rents. It could not have 
been the intention of the Act that the 
rights of tenant** should be conclusively 
determined by the record of rights pro- 
pared for the purpose of partition ; and 
that this is so is clear from tho fact that 
Chapter VI and S. Ill are not covered by 
S. 119. There is, in my opinion, nothing 
in that section to bar the presen . suit. 
The learned Subordinate Judge was of 
opinion that S. 119 must bar the suit 
because the effect of decreeing the plain- 
tiffs' suit would be to upset the whole 
partition. In my opinion that is not w>. 
8. 89 provides for the case of dispossession 
of the proprietor of a separate estate by 
a decree of a Court of competent jurisdic- 
tion and enacts that in such case tho 
partition shall not be disturbed, but such 
proprietor shall be entitled to recover 
from the proprietors of the other separate 
estates formed by the partition such com* 
pensation as may be Sair and equitable. 
That section does not apply in terms to 
the present case ; and there is no reason 
why the principle should not be applica- 
ble. If the value of the defendants' estate 
is reduced by the declaration of tho 
plaintiffs' raiyati right in this land, their 
remedy, in my opinion, would be to seek 
compensation from the other proprietors ; 
but there is no ground in justice why the 
fact that a partition has Keen made on 
the basis that this land is proprietor's 
land should debar, the raiyat from assert- 
ing his raiyati right. 

I would, therefore, dismiss this appeal 
'with costs. As it appears that during the 
pendency of the suit possession was deli" 

(5) [191b] 3 P. L, W, 266= (1918) P. H. 
164. 



lf>4 Patna 



SAGAR MULL v. HIRA MAHARAJ (Ross, J.) 



1926 



vered and the plaintiffs were dispossessed 
the decree will entitle them to recover 
possession with mesr.e profits. 

Das, J. I agree. 

Appeal dismissed. 



A. I. R. 1926 Patna 164 

DAS AND Ross, JJ. 

Sagar Mull Defendant Appellant. 

v. 

Him Maharaj and others Plaintiffs 
Respondents, 

Appeal No. 44 of 1920 and Civil Revi" 
sion No. ^8 of 1925, Decided on 24th 
June 1925, from the appellate decree of 
the Dist. J., Monghyr, D/- 3rd November 
1924. 

(a) Civil P. C. t Sell. 1 2 para. 16 Appeal on 
grounds other than thote in para. 16 is Incompe- 
tent. 

No ,'ippen) lies from an award on grounds other 
than thosi' specified in para. 16 (2). [P. 165, C. 1] 

(b) Appeal Eight to second appeal First ap- 
pellate Court hearing appeal, u'tiere no appeal 
lay Second appeal lien. 

Where no appeal lav to the lower appellate 
Court, but an appeal wiib entertained and decided. 

Held ; a second appeal lies to the High Court. 

[P. 165, C. 1] 

S. M. Mullick and N. N. Sen tor Ap- 
pellant. 

Hasan Imam, N. C. Sinha, N. C. Ghosh 
and Niamutullah for Respondents. 

Ross, J. This is an appeal against an 
order of the learned District Judge of 
Monghyr reversing a decision of the Mun- 
sif and remanding the suit for trial on 
the merits. The auit was brought by 
Plaintiff No, 1, Hira Maharaj, and his 
minor son against fche six defendants who 
are said to be members of the Committee 
of the Lakhisarai Gausala. The suit was 
for specific performance of an agreement 
for sale of a plot of land entered into by 
the defendants with the Plaintiff No. 1 
on the 18th erf December 1920. The par- 
ties entered uito an agreement to refer 
the matter to ' arbitration and a petition 
was i presentd^ on behalf of the minor 
plaintiff for leave to enter into this 
agreement and permission was granted by 
the Court. As the award was not sub- 
mitted by the time limited by the Court, 
after several adjournments had been 
given, the arbitration was superseded on 
the 27th of March 1921 and the case was 



fixed for hearing for the 30th. On that 
date another application was made by 
Plaintiff No. 1 and the defendants to> 
refer the suit again to arbitration. This- 
was granted and the same arbitrators 
were appointed and they submitted their 
award on the following day. 

The Munsif passed a decree in accord- 
ance with the award and dismissed the- 
suit. The learned District Judge held, 
that the reference to arbitration was ille- 
gal inasmuch as no permission was gran- 
ted to the minor plaintiff to enter into- 
the agreement by which the case was 
submitted to the arbitrators- on the second 
occasion. He therefore set aside the decree- 
and remanded the suit for trial on the* 
merits. 

On behalf of the appellant, who is 
Defendant No. 6, the contentions are : 
first, that no appeal lay to the District 
Judge ; secondly, that the question of per" 
mission to the minor plaintiff did not 
arise inasmuch as it was only Plaintiff 
No. 1 who asked for relief ; thirdly, that 
no permission was necessary because* 
0. 32, B. 7, does not control para. 1 of 
Sch. 2 to the Code ; and, lastly, that 
even if permission was ordinarily neces- 
sary, it was not necessary in this case a,s 
Plaintiff No. 2 was joint with his father 
the karta of the family, and was there- 
fore represented by him. 

On behalf of the respondents it is con- 
tended in the first place that even if no- 
appeal lay to the District Judge he has 
passed a proper order such as the Court 
would have passed on an application by the 
plaintiff under S. 115 and, therefore, this 
Court should not interfere ; secondly, that 
the supersession of the arbitration on the 
27th of March cancelled all the proceed- 
ings in arbitration up to that date and it- 
was necessary to obtain fresh permission, 
for the minor plaintiff to enter into an 
agreement to refer the suit to arbitrators;, 
and thirdly, that permission was neces- 
sary because 0. 32, B. 7, controls para. 1 
ftt Sch. 2 ; and, therefore the reference to< 
arbitration was without jurisdiction and 
the order passed by the District Judge 
was right. 

. Now para. 15 ef Sch. 2 states the 
grounds on which an award can beset 
aside. These are for the trial Court to 
consider ; and the ground now taken fell 
to be considered and was considered by 
that Court and it was decided that the 
award was not invalid on that ground.. 



1926 



B. I. BY. CO. V. GOBARDHAN DASS 



Patna 165 



Under tpara. 16, therefore, the Court had 
i,o pronounce judgment according to the 
*ward and it did so. 01. (2) of that para- 
graph states the grounds on which an 
-appeal may be taken against such a decree 
viz., that it is in excess of the award and 
not in accordance with it. No such 
ground was taken before the District 
Judge and therefore no appeal lay. This 
as plain on the language of the section itself 
-and the authorities are clear : Ghulam 
Khan v. Muhammad Hassan (l), Lutawan 
v. Lachya (2) and Khudi Ram Mahto v. 
Ohandi Charan hahto (3). The case 
which the learned District Judge has 
relied upon, Denoddal Pakrasi v. Pran 
Chandra Pakrasi (4) was decided in 1898 
tinder the old Code and before the deci- 
sion of the Judicial Committee and is no 
longer law. The learned counsel for the 
respondents did nofc attempt to support 
ihis part of the judgment and conceded 
that no appeal lay to the District Judge. 
But as the District Judge entertained and 
decided the appeal there is a second appeal 
to this Court. That second appeal 
must be decided according to law and the 
judgment of the District Judge must be 
set aside. 

As to the contention of the respondents 
that this Court should nofc interfere when 
* proper order has been made, this argu- 
ment can be raised only in answer to an 
.application for the exercise of the revi- 
sional jurisdiction of the Court. This is 
not the case here ; nor is there any appli- 
cation by the respondents against the 
order of the Munsif ; consequently this 
point does not arise. Moreover, even if it 
<iid arise, this contention could not suc- 
ceed because it rests on a pure technica- 
lity. 'Ehe defect is formal only, because 
on the first reference to arbitration per- 
mission was accorded to Plaintiff No. 2 ; 
and there is no ground for supposing that 
it would have been refused on the second 
occasion. 

But on the merits it is clear that the 
appellant is entitled to succeed. I do not 
propose to enter in the question whether 
O. 32, R. 7, controls para. 1 of Sch. 2 a 
question on ^rhich there has been niucji 
'difference of opinion ; nor need I discus's 
jfehe argument that Plaintiff No. 1 repre- 

,(1) [190*] 29 Cal, 167=29 I.A. 51^6 C.W.N. 
2-26=12 M.LJ. 77=4 Bom. L.R. 161=8 
Bar, 164 (P.O.). 

2) [1914] 36 All. 69=12 A.L.J. 57 (P. B.). 

<8) [1916] 1 P.L.J. 305=2 P.L.W, 377. 

<4) -[1911] 14 C.L.J. 143. 



senfced Plaintiff No. 2 *K> as to make it un- 
necessary for the Court to grant permis- 
sion to Plaintiff No, 2 to agree to arbitra- 
tion. But the plaint itself shows and the 
prayer is specific that only Plaintiff 
No. 1 prayed for judgment. No relief waa 
sought for Plaintiff No. 2 and he was in 
no way interested in the suit. The agree- 
ment of which specific performance was 
sought was entered into by the defen- 
dants with the Plaintiff No. 1 and he 
alone was entitled to enforce it. 

On every ground I am of opinion that the 
decision of the learned District Judge is 
wrong and must be set aside. The appeal 
is therefore decreed with costs throughout 
and the decree of the District Judge is set 
aside and that of the Munsif is restored. 

The application in revision is dismis- 
sed. 

Das, J.~- 1 agree. 

Appeal allowed. 



# A I R 1926 Patna 165 

MUXLTCK, AG. C. J., AND KULWANT 

SAHAY, J. 

East Indian Railwiy Co. Defendant 
Appellant. 

v. 

Cfobardhan Das Plaintiff Respondent. 

Second Appeal No. 393 of 1923, De- 
cided on 22nd July 1925, from a decision 
of the Bub.-J., Ranchi, D/- 20th January 
1923. 

>$C (a) Railway? Act, S. 72 flhfc note B 
Consignor pleading fam tn himself Railway need 
not plead loss to them but may simply plead the 
risk note. 

10 order to make the risk note applicable it is 
sufficient that the plaintiff-consignor pleads Ions 
to himself. It is not necsnsary for the defendant 
Railway to give evidence that the goods have been 
lost to him also. Therefore if the plaintiff admitn 
the loss then all that the defendant has to do in 
the written statement is to plead the contract. Ha 
is not required to bring any evidence to support 
his plea. If the plaintiff is astute to plead not 
loss but only non-delivery, even in that case tho 
defendant need only plead the contract and ho 
will be relieved from the duty of calling evidence : 
A. I. R. 1923 Patna 285, Foil ; 45 Bom. 1201 not 
Foil. A. I. R. 1924 Patna 25 and A. L R. 1924 
Cal 725, Dlst. [P. 166, C. 1, 2] 

ifc (b) Railways Act, S. 72 Risk note B 
\Vllful neglect means deliberately doing or abstain- 
ing from doing an act which the party is bound to 
do. 

" Neglect " means the omission to perform a 
duty and implies that a man does something 
which ought either to be done in a different man- 



1G6 Patna 



B. I. RY. Co. v. GOBARDHAN DAS (Mullick, Ag. C. J.) 



ncr or not at all. or tliat he omits to do something 
which ought to be done. But wilful neglect gees 
Jar beyond this and implies that the party knew 
that, he should do a particular act and that he 
deliberately abstained frcm doing it. There may 
bo r;aseh where neglect may be deliberate and yet 
not, wilful an for instance when the act is not that 
pt ft free agent. Apart frcm such cases it may be , 
psiid that every omission is wilful because everyone 
rmi fit be pro-limed to have intended the ordinary 
ooDBequonce nf his act. But the mere presump- 
tion of law for the purpcse of fixing responsibility 
is riot sufficient. . [P 167 C 1 & 2] 

N. C. ftinlia and N. C. Ghosh for Ap- 
pellant. 

S. Dayaltor Kespondent. 

Mullick, Ag. C. J.On the 2*tb Feb- 
ruary 1D21, the plaintiff consigned to the 
defendant Company 25 bags of coriander 
seed at Howrah and on the 20th Sep- 
tember 1921, ho consigned 125 bags of 
sugar at the Kidderpore Docks for delivery 
at Giridili to himself. It is admitted by 
the plaintiff that 16 bags of sugar and one 
bag of coriander seed were lost and 
the present claim is for Rs. 782 as dam- 
ages. 

The defendant set up a risk note in 
form B arid declined to give any account 
of what had become of the goods. 

The Munsif decreed the suit and on ap- 
poiJ the Subordinate Judge affirmed that 
decree. 

The present second appeal is 'preferred 
by the defendant. 

The solo question is whether the risk 
note absolves the defendant from liability. 
The Subordinate Judge thought that the 
rink note did not apply because this was 
a case not of loss but of non-delivery and 
in his opinion a loss to the plaintiff is not 
su flic lent and the defendant must give 
proof of loss to himself. He relied on the 
cane o! Chela Bhai Punsi v. E. I. By. Co. 
(I). But it has been held in G. I. P. By. 
Jo. v. 'Jitan Bam Nirmal Ham (2) that in 
Ktler to make the risk note applicable it 
IB sufficient that the plaintiff pleads loss 
bo himself and that it is not necessary for 
the defendant to give evidence that the 
goods have been lost to him also. Refer- 
9nc6 was made in that case to the judg- 
ment of the House of Lords in Smith Ltd. 
v. Great Western Bailway Company (.3) 
and Ghela Bhai's case (l) was dissented, 
from* The same view has been taken 
m other cases in this Court and I think we 
must follow the cursus citriae. 



Tlf fli)21J 4T 

(2) A.l.R. 1923 Patna 285. 

(3) [mi] TJR., 2 K.B., 237. 



Our attention has been drawn to East 
Indian Baihvay Company v. Sukkdeo Das 
and Gobardhan Das (4) where a 'learned 
Judge of this Court sitting alone held that 
the risk note did not apply because the 
defendant had not pleaded loss within the 
meaning of the special contract. It would- 
seem that the decision in that case turned 
upon the special language used in the 
written statement. But the G. /. P. By. 
Co. v. Jitan Bam Nirmal Bam (2) ^ is 
quite clear and lays down the following, 
rules (l) : where a contract contains an 
exception and a proviso the party who 
desires to take the benefit of the exception 
must (if the contract requires it) not only 
plead the exception but , prove it, and 
when that has been done the other party 
who desires to take the benefit of the pro- 
viso, which is in reality -an extrinsic co^ 
venant by way of defeasance, must prove 
that the subject-matter is riot within the 
exception ; (2) upon the special contract 
.in risk note B the burden of proof lies in 
the first instance upon the defendant to- 
show that there was such loss as is con- 
templated by the risk note and the onus 
is then shifted upon the plaintiff to show. 
that the loss was due to the wilful neg-> 
lect of the defendant. 

Therefore if the plaintiff admits the 
loss, then all that the defendant has to do 
in his written statemeiit is to plead the 
contract. He is not repuired to bring any 
evidence to support his plea. If, as is 
frequently the case, the plaintiff is astute 
to plead not loss but only non-delivery, 
even in that case the defendant need only 
plead the contract and he will be relieved 
from the duty of calling evidence. 

The question really turns upon the con- 
struction of the risk-note. Does it intend 
that loss to the plahltiff only will be 
sufficient to bring it into operation or 
does it intend otherwise ? In my opinion 
'the answer is that the decision in 6. I. P. 
By. Co. v. Jitan 'Bam Nirmal Bam (2) 
was correct and the contract requires that 
loss to the plaintiff is sufficient to brirfg 
it into operation. If the goods are being 
wrongfully withheld by the Railway 
: Company and have not been lost to them, 
I see no hardship, to the plaintiff in oorr 
' st ruing the risk note to cover such a cage 
The plaintiff would then *be entitled tc 
an immediate decree on the gvoud that 
the goods have been lost to him by reasor 
of the wilful neglect of the defendant t( 
(4) A.I.R. 1024 Pat. 25. 



1926 



B. I. BY. Co. v! GOBARDHAN DAS (Mullick, Ag. 0, J.) Patafc 167 



deliver. t lf the defendant has good grounds 
for detailing the goods he must prove 
them. Therefore, in my opinion, the 
learned Subordinate Judge's finding that 
the failure of the defendant to give any 
account of the disappearance of the goods 
proves that the goods have not been lost 
within the meaning of the risk note can- 
not be supported, and the risk note also 
applies where the plaintiff only pleads 
non-delivery. In truth, in most cases the 
real object of asking the defendant to call 
evidence of loss to himself is not to test 
the correctness of the defendant's allega- 
tion but to get by cross-examination some 
evidence of wilful neglect so as to found a 
claim under the proviso. 

A contrary t vie\v has recently boon 
taken in the Calcutta High Court in the 
Ea t st Indian Railway Company v. Joy pat 
Singh (5). In arriving at the conclusion 
that loss to the plaintiff is not sufficient 
the learnecl Judges m that case have relied 
upon the; language of the English Carriers 
Act of 1830 and the decision of Baron 
Parke in Hearn v. London and South 
Western Railway Company (6). 33ut my 
respectful opinion is that the English 
Carriers Act is not in pari materia with 
the Indian Railways Act ; and having re- 
gard to the fact that a carrier under the 
English Act is an insurer which a railway 
sompany in India is not, I do not think 
we are compelled to give the word " loss" 
the same meaning here as in the Carriers 
Act. 

If .then the risk note applies is the 
plaintiff t entitled to succeed on the ground 
of wilful neglect on the part of the Bail- 
way ? The learned Subordinate Judge's 
judgment on this point is as follows : 
* The position of the plaintiffs was such 
that it was not possible for them to make 
anything more than a general statement 
of the factj of negligence as inferred from 
all the circumstanqes. And they are not 
to blam$ if they have not been able to 
make out by, means of qross;examination 
the specific acts of negligence because the 
avaiJftWe evidence on the questjipn of loss 
has not beep placed before the Court." If 
that j& . ,tjhe position, I cannot see upon 
\yhat evidence the learned Subordinate 
Judge comes, to the finding that tl^ere has 
been w^fl], ,peglecfc, ' Neglect" means the 
omission,^ perform a <( duty and implies 
that a man,. does something which ought 
(5) AII.&, m* t Qal.. m~~~ 

(0) [W5] 10 Ex. 793. 



either to be done in a different manner or 
not at all, or that he omits to do some- 
thing which ought to be done. Here the 
defendant's duty was that of a bailee, 
namely, to take such care of the goods as 
a prudent man would have taken of his 
own goods. The degree of care required 
depends on the circumstances of each case, 
The plaintiff must show that the defen- 
dant did something which a prudent man 
in his circumstances, and having regard to 
the previous course of dealing, would 
not have done. There is no such evidence. 

The defendant in cross-examining one 
of the plaintiff's witnesses suggested that 
he thr pin i id iff had, as a matter of fact* 
' v-kod t.ho \\.igons \vith his own locks, but 
shit \vu.s denied. The learned Subordi- 
nate Judge does not mid that it was the 
defendant's duty to bupply locks to the 
wagons and there is no evidence that th& 
defendant did not take that care which 
he would ordinarily take of his own goods. 
or of the goods of his other 'consignors in 
transit. 

Then the learned. Subordinate Judge 
says that if the goods were stolen before 
they wore loaded there must have been 
neglect. That docs not follow. He also 
says that if they were delivered to a 
wrong party there must have been neglect. 
There is no proof that they were delivered 
to a wrong party. 

There is, therefore, no legal evidence of 
neglect at all, 

But wilful neglect goes far beyond this 
and implies that the defendant knew that 
he should do a particular act and that he 
deliberately abstained from doing it. 
There may be cases where neglect may be 
deliberate and yet not wilful, as for in- 
stance when the act is not that of a free 
agent. Apart from such cases it may be 
said that every omission is wilful because 
everyone must be presumed to h#ve in- 
tended the ordinary consequence of his 
act. But the mere presumption of law 
for the purpose of fixing responsibility is 
not sufficient The plaintiff must show 
that the neglect was not accidental and 
that the person knew that mischief would 
result from his conduct or that there was 
an indifference to his duty to ascertain 
whether such conduct was mischievous or 
not. Jn Lewis v. Great Western Railway 
Company (7) the questic-n was whether 
there had been wilful misconduct in 



(7) . 



T..T 17! 2". \\.C. 250. 






16 Patna 



TUNIA v. EMPEROa (Bucknill, Jj 



1926 



packing certain cheeses in London and 
Lord Justice Bramweli expressed himself 
on the subject as follows : '' I cannot, 
however, say that there was evidence 
here to show that the packers who were 
in London, wh^ u ' -i great place for 
the exporta . . .,*. ^neshire ^cheeses, knew 
that they were doing wrong, or at all 
events that they were aware that there 
might he mischief resulting from it, and 
that they improperly did not inform 
themselves as to whether there would be, 
or would not be, mischief resulting." 

In my opinion there was no legal evi- 
dence of wilful neglect here and therefore 
the plaintiff is not competent to suc- 
ceed. 

The result is that the appeal will be 
decreed with costs throughout. 

Kul want Sahay, J. I agree. 

Appeal allowed. 



* A. I. R. 1926 Patna 168 

BUCKNILL AND Boss, JJ. 

Tunia Petitioner . 
v. 
Emperor Opposite Party. 

Criminal Kevision No. 296 of 1925, 
Decided on 23rd July 1925, from an order 
of the S.-Juclge, Arrah, D/- 1st June 
1925. 

5{C Penal Code, S. 193OIr Ing fake answers to 
questions which should not have been aked but 
were a*1wd Per jury* Is committed but sentence 
should be light. 

If one answers questions put to one in a judicial 
proceeding when one has pworn to tell the truth 
and if one's answers are not true, one commits 
perjury, whether those questions which one 
answers are not questions which should have 
been or could have been properly asked. The 
sentence, however, in such cases should not ba 
very severe. [P 169 C 1] 

P. C. Roy tor Petitioner. 
Niamatulla for Opposite Party. 

Bucknill, J. -This was an application 
made in criminal revisional jurisdiction. 
It was made by one Mt. Tunia, a young 
woman, who was convicted by a Magis- 
trate of the First Class at Arrah of an 
offence punishable under the provisions 
of 8. 193 of the Indian Penal Code, that 
1 is to say, with having committed perjury 
in the course of a judicial proceeding. 



She was sentenced to undergo rigorous 
imprisonment for six months and to pay 
a fine of Bs. 200, and in default of pay- 
ment thereof, to serve a further term of 
two months' rigorous imprisonment, 
From her conviction- and sentence the 
applicant appealed to the Sessions Judge 
of Shahabad ; but on the 1st of June last 
the appeal was dismissed summarily. 

The circumstances which have tsd up 
to the prosecution of this woman and her 
conviction are certainly somewhat pecu- 
liar. It would seem that at the end of 
July last year a burglary took place ni 
the house of a lady residing in the tow n 
of Arrah. A man named Tara Prasad, 
who is in the employment of this lady, 
reported the burglary to the Police ; and 
upon being asked whether he had any 
suspicion as to by whom the offence had 
been committed, he is said to have replied 
that he thought that it was not impro- 
bable that one Ramsakal Singh of Gonouli 
might have been concerned in the matter. 
[e added that this Eamsakal Singh lived 
in the same mahalla where the burglary 
had been perpetrated, that his (Ram- 
sakal's) uncle was on bad terms with the 
lady whose house had been broken into 
and that Ramsakal himself was the asso- 
ciate of evil persons. 

As a result of what had taken place at 
the police station, it would seem that, on 
the 27th of August last, this Ramsakal in- 
stituted proceedings against Tara Prasad 
charging him with having committed an 
offence punishable under the provisions 
of S. 500 of the Indian Penal Code that 
is to say, with having committed defama- 
tion. Tara Prasad was put on his trial ; 
we are informed at the Bar that he was 
eventually acquitted. What defences he 
put forward I do not know ; but it would 
seem that, amongst them, must have 
been one which contemplated some plea 
in the nature of justification, for he 
called as a witness in the defence the 
applicant here. So far as I can gather 
his object in calling this woman was to 
show that she was a woman of easy 
virtue and had been the kept mistress of 
the man Ramsakal Singh, and I suppose 
that it would have been urged that 
if it could have been shown that Bam- 
sakal Singh had kept company with a 
woman of ill-repute, the suggestion made 
by Tara Prasad in the statement which 
he made to , the police, when reporting 
the burglary, that Ramsakal was the assor 



1926 



v. EMPEROR (Bucknill, J.) 



Patna 169 



t e of evil companions might have been 
d in some measure to he justifiable. 
Now, when the applicant was put into 
the witness-box, she does not appear to 
have realized that it was in no way in- 
cumbent upon her to answer any ques- 
tions which might have reflected upon 
Tier own probity or virtue and it is some- 
what remarkable to notice that no 
attempt at protecting her from having to 
ireply to questions of that nature appears 
i>o have been offered to her by the officer 
^who was trying the case. On fche other 
Tiand it would seem that she was interro- 
gated very fully as to her morality and 
^s to her immoral association with Ram- 
sakal Singh ; how such a proceeding could 
have been allowed unless she had been 
*(which she was obviously not) willing to 
assist Tara Prasad by blackening her own 
character, it is difficult to understand. 
However, the fact remains that she was 
asked a variety of questions of the char- 
acter which I have mentioned and that 
she answered in a manner protective of 
her own character. There is, however, 
not the least doubfc that a number of her 
answers were not true ; she had been put 
upon her oath and it is, of course, need- 
less for me to point out that if one 
answers questions put to one in a judicial 
proceeding when one has sworn to tell 
the truth and if one's answers are not 
true, one commits perjury, whether those 
questions which one answers are^not ques- 
tons which should have been or could, 
have been properly asked. After the 
applicant had given her evidence which I 
may point out was, of course, not in 
favour of Tara Prasad, she was eventually 
charged as I have mentioned above, tried, 
convicted and sentenced. I think that it 
must be admitted that the circumstances 
were extremely difficult and painful for 
the applicant, she was placed in an un- 
enviable position and, -no doubt, was 
completely ignorant of her right to refuse 
to answer questions which would reflect 
upon her ewn character and had the un- 
pleasant alternative either of telling the 
truth and admitting that she was a loose 
woman, or as she did, of telling untruths 
and melking herself out better than per- 
haps she really was. 

It is,, however, I think, not unimport- 
ant to observe the actual averments 
-v/bich were made against her which 
formed the basis of the charge of perjury 
against her* Although it is true 



that superficially some of these ^questions 
do not appear in themselves to be such as 
if answered truthfully would have 
thrown any discredit upon the applicant's 
character, yet, on further examination, 
they will all be found to be connected 
more or less closely with the illicit asso- 
ciation which it was being attempted to 
be proved had existed between the appli- 
cant and Ramsakal Singh. The first 
untrue statement which she is alleged to 
have made is that she did not know this 
man at all. There can be no doubt from 
the evidence of at least six witnesses and 
from documentary evidence as well that 
this was not true. The second statement 
was that she had never stated that Ram- 
sakal Singh, this particular individual, 
used to visit her frequently. This again 
was, undoubtedly, not a true statement. 
The statement in which she is, 
alleged to have perjured herself- 
was that she denied that the per- 
son named Ramsakal against whom 
and herself a woman named Dularia in 
1923 had brought some criminal proceed- 
ing was the same Ramsakal as that con- 
cerned in the case which was being, 
brought against Tara Prasad. Again 
there can be no doubt that this statement 
was not true. The fourth question which 
she is said to have answered untruthfully 
was that she denied that when her house 
had been entered for the purpose of exe- 
cuting some legal purposes Ramsakal had 
been found there in her company. This, 
however, again was undoubtedly shown 
to be a falsehood. The fifth and the last 
answer which she is said to have made 
falsely is the point blank avowal that she 
was not the mistress of this Ramsakal. 
The Magistrate has stated that the evi- 
dence of all the witnesses for the defence 
and indeed of the main prosecution wit- 
nesses shows that this statement was, as 
he terms it, " a deliberate* lie." There 
can, therefore be no doubt whatever that 
this woman in the witness-box made 
statements which were untrue, and 
which she knew to be untrue. There 
are however, obviously reasons for coming 
to the conclusion that her position was 
allowed to be one which it ought not to 
have been allowed to be. I think that 
she ought to have been informed that it 
was in no way incumbent upon her to 
reply to questions her answers to which 
might, if true, have reflected upon her 
moral character. 



170 Patna 



THAKUR SAO v. ABDUL Aziz (Mullick, J.) 



192S 



Under these circumstances, although 
there undoubtedly has been a commission 
of the offence to which I have referred it 
seems to me that the sentence is alto- 
gether too severe. We are informed by 
the learned advocate who appears for 
the applicant that the applicant has 
already served 21 days in jail. 
I am satisfied, in my own mind, 
that this is an ample punishment for the 
offence committed under the remarkable 
circumstances to which I have drawn 
attention. Whilst, therefore, affirming the 
conviction, the sentence of imprisonment 
which was passed upon the applicant will 
be reduced to that period of imprison- 
ment which she has already served. The 
fine of Bs. 200 will be remitted and if it 
has already been paid it must be refunded 

Ross, J. I agree. 

Sentence reduced. 



* A. I. R. 1926 Patna 170 

MULLICK AND, Ross, JJ. 

Thakur Sao and others Petitioners. 
v. 

Abdul Aziz Opposite Party. 

Criminal Revisions Nos. ">H and 59 of 
1925, Decided on 7th May 1925, from an 
order of the Dist. Mag., Patna. 

^C (a) Criminal P. C M #. rMlOnly irlicn denial 
of right ts a pretence Magistrate can indite order 
absolute. 

The first duty of a Magistrate in a case under 
S. 186 is to determine whether any public right 
uxista, and if the party against whom proceedings 
have been taken denies that there is any public 
right, the Magistrate has to determine whether 
that denial is bona fide or a mere pretence. Only 
when he is satisfied that the denial is a mere 
pretence can he proceed to make his prder 
absolute. If he finds that the Denial is bona fide, 
his jurisdiction is ousted and ho has no authority 
to enquire further. The Magistrate is not en- 
titled to demand < that the evidence shall be 
sufficient to satisfy him that no public right 
exists. The only condition is that upon the 
materials before him the Magistrate must have 
no reason to think the evidence false. The Magis- 
trate has* no jurisdiction to weigh the evidence 
and to determine, on which side the balance 
leans.,, , , [P 171, 1] 

* ($) Criminal P. C., S. 189-4 CDBeliable evi- 
dence supporting denied of right ousts jurisdic- 
tion. ' '' 

' The intent of S. 130- A 12) U that ' the Magis- 
trate should neither encroach on 'the jurisdiction 
of the citil Court 'which alone can determine 
the existence of such a public rigfct as i$ *$forr$d 
to, nor fail to exercise his own jurisdiction. The 



criterion is that he should find evidence to sup- 
port the denial which he can pronounce reliable* 
That is necessary and it is sufficient to oust his 
jurisdiction. [P 171, C a] 

K. B. Dutt, S. P. Verma, Manohar Lai 
and'/S. N. Sahay for Petitioners. 

Sultan Ahmad, Muhammad Hasan Jan, 
Falcr'ud'din nnd Ahmad JRaza for 
Opposite Party. 

Mullick, J.- -A dispute having arisen 
between the Hindus and Muhammadans 
residing within the cantonment of Dina- 
pur regarding the use of a ghat on the 
riyer Sone, the Sub-Divisional Magistrate 
of Dinapore on the 14th January last is- 
sued two orders which form the subject 
of the present applications before us. 

One of these orders declares the "ghat 11 
to be public and purports to have been 
made under S. 139- A, Criminal P. C. The 
Magistrate ha.d issued a notice under 
S. 135 of the Code calling upon Deonarain 
Pande, the priest of the temples, to show 
cause why he should not remove certain 
enclosures and a signboard indicating 
that it was private property. The other 
order was made under S. 144 of the Code 
and prohibited six of the leading Hindus 
from restraining the Muhanmiadans from 
using the ghat. 

It appears that the bank down fco the- 
water of the river is the property of Gov- 
ernment and that 40 or years ago a. 
Hindu resident of the locality obtained 
permission to erect two or three temples 
on the bank and to construct a flight of 
steps for the use of bathers. 

The ease of the Hindu is that they 
have acquired an exclusive right to use- 
the steps and that the Muhammadans are; 
not entitled to use the same as of right. 

The learned Magistrate proceeded to 
hold an inquiry under S. 139- A of the 
Criminal P. C. as to Deonarain's claim, 
that the ghat was private property andi 
as to his denial that there existed any 
public right in respect thereof, he took 
the evidence of five Hindus and of a 
number of Muhammadans, and the con- 
clusion to which he came was that the 
Hindu witnesses though reliable were- 
mistaken in imagining that there was no 
'public right. 

Now it is contended that the law does 

not give the Magistrate the power to find 

whether in fact the denial is true or false 

, and as soon as a bona fide dispute has 

been made out, the Magistrate must hold 



1926 



GOSWAMI LALOO v. RADSEY LAL 



Fatna 17X 



his hand and refer the parties to the 
civil 1 Court. 

The law, previous to the Code of 1923 
as expanded in judicial decisions, was 
that as soon as the party cited appeared 
before him the Magistrate's first duty in 
a case under S. 133 of the Code was to 
determine whether any public right ex- 
isted, if the party denied that there was 
any public right, the Magistrate had to 
determine whether that denial was bona 
fide or mere pretence. Only when he 
was satisfied that it was pretence could 
he proceed to make the order absolute. 
If, t however, he found that the denial 
was 1 'bona fide, his jurisdiction was ousted 
and he had no authority to enquire 
further. 

Now S. 139 of the present Code appears 
merely to have confirmed this view of 
the law and given statutory expression 
to it. The section provides that if in 
such inquiry the Magistrate finds that 
there is any reliable evidence in support 
of such denial, he shall stay the pro- 
ceedings, until the matter of the existence 
of such right has been decided by a com- 
petent civil Court ; and if he finds that 
there is no such evidence he shall pro- 
ceed, as laid down in S. 137 or S. 138 an 
'the case may require. 

The law, therefore, requires first of 'all 
that the party shall, appear before the 
Magistrate and deny the existence of the 
public right in question. Secondly, that 
he shall produce son& reliable evidence, 
and, thirdly, that' such evidence shall Be 
legal evidence and 'shall support the 
denial. If these three conditions are 
satisfied, then the Magistrate's jurisdic- 
tion ceases to exist. 

Now it is contended that the Magistrate 
is entitled to demand that the evidence 
shall be sufficient to satisfy him that no 
public right exists. The section, bow- 
ever', requires evidence and rio't proof and 
the only condition is tn at upon the mate- 
rjals before him the Magistrate has not 
reason to think the evidence false. The 
Magistrate has , Jib jurisdiction to weigh 
fcne evidence anil tp determine on which 
side the balance leans. ' 

Moreover, there wa$ evidence which, if 
believed,, s^pporte^ the ^ckim.made by 
the petitioners. It is pot, disputed that the 
witnesses are thoroughly honest in what 
they say ; but the Magistrate says that 
they are mistaken in thinking that the 
'ghat' is 'hot puhlic. that' is a matter'*' 



the civil Court and, in my oj.inion, 
Magistrate has no jurisdiction to inquire 
any further into the actual existence of 
the public right claimed by ti:e Muhanr 
madans. 

In this view of the .case the order of 
the learned Magistrate of the 14th Janu- 
ary 1925, will be set aside and he will 
be directed to stay all further proceedings 
in the case. The order under S. 144, Cri- 
minal P. C., has spent its force and no 
orders ate required in respect of it. 

Ross, J. I agree. It seems to me 
that the intent of S. 139-A (2) is that the 
Magistrate should neither encroach on 
the jurisdiction of the civil Court which 
alone can determine the existence of such 
a public right as is referred to, nor fail to 
exercise his own jurisdiction. The cri- 
terion is that he should find evidence to 
support the denial which lie can pro- 
nounce reliable. That is necessary and it 
is sufficient to oust his jurisdiction. 

Order according //. 



# A. I. R. 1926Patna 171 

JWALA PKASAD AND ADAMI, JJ. 

Gosiraiiri Lalor> Lai Sharma Appel- 
lant. 

v. 

liadhey Lai Gosicami and others 
'Respondents, 

Miscellaneous Appeal No. 153 of 1924 
Decided on 24th November 1924, for 
staying the proceedings of the Court of 
the Dist. J., Mathura. 

% (a) Civil 1\C., R. 151-Jn./wc'fcw against 
person outside juried iction can be Issued V/ lie 
has sulirittcd to jurisdiction InjunctionCivil 
1\ C., Ss. 10, 22 and 0, 39. 

Although a Court will not issue any injunction 
against a person not within its jurisdiction, yet 
when t}wt person has submitted to. itt- 
jurisdiction, the Court 'will in the ends of justice 
restrain that party from, (Icing anything whiih it 
considers is improper and will amount to an 
f abu*e of the process of the Court..! . ,L f 
T: WFoll IP 173, C I] 

T. JV. &c(]\ay for Appellant. , !; , , 
K. P. ^Jayasival, G. #. MiMi eri 
Ali and B. C. Dofor uespocdfcflfcs. 



this is an , applibatlon to 




172 Patna 



GOSWAMI LALOO v. BADHEY LAL 



1926 



Administration with respect to the estate 
of one Mohan Lai. The applicant in that 
Court is Manu Lai, son of Kishori Lai, 
brother of Mohan Lai. The opposite 
parties in that case are Laloo Lai, son of 
Mohan Lai, Bad hey Lai Goswami and 
others, sons of the daughter of Mohan 
Lai. Previous to the institution of the 
proceedings in the Mathura Court, Laloo 
Lai had applied to the District Judge of 
Patna for the grant of Letters of 
Administration to the estate of Ms father 
Mohan Lai. The application was^opposed 
by the aforesaid Goswamis, the sons of 
Mohan Lai's daughter. Manu Lai was 
also made a party and entered ap- 
pearance, but afterwards ceased to take 
-any interest in the proceeding. That 
application was made on the 17th 
'September 1923 and terminated in the 
final order of the District Judge passed 
on the 14th June 1924, by which the 
application of Mariu Lai was refused. 
Against that order Manu Lai has appealed 
to this Court, and has now applied for an 
ad interim stay of proceedings in the Court 
at Mathura in the United Provinces, 
pending the disposal of the appeal 
here. 

On the 7th of August 1924 an order 
for ad interim stay of the proceedings 
before the District Judge of Mathura was 
made by this Court pending the disposal 
of the present application. Now the 
Applicant has come up before us for de- 
termination ,asto whether the ad interim 
injunction should continue pending the 
disposal of the appeal or it should be 
withdrawn. 

The Goswamis, that is, the daughter's 
-sons of Mohan Lai, have appeared 
through Mr. Jayaswal. He supports the 
application of Laloo Lai. Manu Lai, 
who is the applicant in the Mathura 
Oourt for the grant of Letters of Admini- 
stration to him, however, opposes this 
-application, He contends that the 
application should be made in the Court 
of the District Judge of Mathura for 
tay of proceedings under S. 10 of the 
Civil Procedure Code, and that no 
injunction should be issued against him 
restraining him from proceeding with 
his application in the Mathura Court. It 
is admitted on all hands that the point 
,t issue, both in the appeal pending 
l>efore us and in the proaeedings in the 
Mathura Court, are one and the same. 
The proceeding out of whioh the appeal 



to this Court has arisen was started long 
before the application made by Manu Lai 
in the Mathura Court. Upon these 
admitted facts the suit at Mathura cannot 
proceed and the trial of that suit is 
barred by S. 10 of the Code of Civil 
Procedure. It is true that an application 
for stay of proceedings under S. 10 of the 
Code should have been made in the 
Mathura Court. Upon the facts stated 
by the parties an application for the grant 
of Letters of Administration could be 
instituted either at Patna or at Mathura 
and as a matter of fact the proceedings 
have been taken in both the Courts. 
This circumstance brings the case within 
S. 22 of the Code read with S. 23, and 
the Court can determine in which of the 
two Courts the proceedings shall proceed. 
Manu Lai was made a party in the 
proceedings before tho District Judge of 
Patna and he entered appearance. No 
objection was? however, made by him as 
re^aids the proceedings instituted in the 
Patna Court or that those proceedings 
should have been stayed. He quietly 
went to Mathura and instituted a fresh 
proceeding and allowed the proceedings 
at Patna to continue and to be dealt 
with and determined by the District 
Judge of Patna. He, therefore, submit: 
ted to the jurisdiction of the Patna 
Court. Having thus submitted to the 
jurisdiction ot the Patna Court he cannot 
frustrate the appeal in this Court by 
simultaneously going on with his pro- 
ceedings in the Mathura Court. It is, 
therefore, to my mind, obvious that the 
proceedings at Mathura should not go on 
until the disposal of the litigation here. 
The Code has carefully avoided the 
chance of any clash in the decision of 
two Courts either in the same High Court 
or in different High Courts with respect 
to the same point at issue arisingjbetween 
the same parties. When the suits and 
proceedings are in the Courts subordinate 
to the same High Court the matter does 
not present any difficulty and can be 
effectively dealt with by that High Court. 
Difficulty, however, is felt in dealing with 
such matters when they are pending in 
Courts subordinate to two High Courts, 
-for one High Cou?t has no control over 
the Courts subordinate to another High 
Court. To meet these difficulties the 
Code has made provision in two sections, 
viz. Ss. 10 and 22. These express provi- 
sions are further fortified by the power 



1926 



SITARAM v. EMPEROU 



Pattm 173 



vested in the Court for issuing injunctions 
against persons who are either within 
the jurisdiction of the Court or have 
submitted to its jurisdiction. Therefore 
the provisions contained in Ss. 10 and 22 
are supplemented by those contained in 
0. 39 relating to injunctions and to 
those which He in the inherent power of 
the Court. It is certain that in the 
circpmstances of the case the proceedings 
in the Mathura Court should not go on 
and be stayed. 

The question of procedure then, to my 
mind, will not at all stand in dealing 
with the matter. Whereas under S. 10 
the party should apply to the Court in 
which the subsequent suit or proceeding 
is instituted under S. 22 this Court has 
jurisdiction to make an order that the 
appeal in this Court shall proceed. This 
order under S. 22 has the effect of stop- 
ping the proceedings in the Mathura 
Court. This has been the view arrived 
at by me in the case of Firm Ram Kumar 
Sheochand Bai v. Firm Tula Ram Nathu 
Ram (l), and, although this Court will 
not issue any injunction to Courts subor- 
dinate to another High Court, yet the 
order passed by this Court under S. 22 is 
final ; and it will not be open to any 
other Court in Iiidia to dispute 'it and to 
allow suits and proceedings to proceed 
in any other Court than that in which this 
Court directs. Again, although the Court 
will not issue any injunction against a 
person not within its jurisdiction, yet 
when that person has submitted to the 
jurisdiction, the Court will in the ends 
of justice restrain that party from doing 
anything which it considers is improper 
and will amount to an abuse of the 
process of the Court. The reason why 
an injunction should not issue against a 
person residing outside the jurisdiction of 
the Court, is that an injunction on a 
person if disobeyed cannot in that 
circumstance be enforced, but a party to 
a proceeding pending in this Court or 
in Courts subordinate to this Court is 
amenable to this Court. Manu Lai was 
a party in the Court below and entered 
appearance and did not object to the 
jurisdiction of that Court and therefore; 
he made himself liable in personam to 
this Court, vide Amar Kumar Mukherjee 
v, B. Coventry (2). Again, he is a respon- 
(1)[1920]1 P. L. T. 277-U920) P. H. C, C. 

sot*. 

(2) A. I. K. 1925 Patna 710. 



dent in this Court and. has entered 
appearance. Therefore an injunction can 
issue against him uestraining him from 
proceeding .with the suit in the Mathura, 
Court, 

It has, however, been contended that 
aniinjanction against Manu Lai will not at 
all interfere with the Mathura Court and 
that Court in spite of such an injunction 
can continue the proceedings in that 
Court. That, contingency may not be 
apprehended. So long as Manu Lai is. 
personally responsible to this Court an. 
injunction against him, restraining him 
from doing any act, is a sufficient check, 
upon any proceeding being 'adopted by, 
him in the Mathura Court. 

The case, we are told, is not a compli- 
cated one, nor is it a heavy case. Most of. 
the papers are in English and will not be 
required to be translated. The appellant 
is ready to deposit the printing costs, 
which has now been estimated by the 
office for printing the paper-book. 
Therefore the preparation of the paper 
book can be expedited and so also the 
bearing of the appeal. The ad interim. 
order passed by this Court on the 7th 
August 1924, should, therefore, 
continue until" the disposal of the appeal, 
the hearing of which is directed to bo 
expedited. On behalf of Manu Lai an 
undertaking has been given that he will; 
not proceed with the proceedings in the 
Mathura Court if the hearing in this 
Court is expedited. In the circumstances. 
there will be no order as to costs. 



* A.I.R. 1926 Patna 173 

MULLICK AND ROSS, JJ. 

Sitaram Das Petitioner. 
v. 

King-Emperor Opposite Party. 

Criminal Revision No. 82 of 1925, De- 
cided on 14th May 1925, from a decision 
of the S. J M Bhagalpur, D/- 19th Decem- 
ber 1924. 

# (a) General Police Act (5 of 1861), 6'. 30 
Section gives police power to control procession, but 
not to forbid. 

Section 30 of the Act gives the police power to 
control processions. In order that this power 
may be exercised the Act in certain circumstances 
authorizes the police to require persons to apply 
for licenses. The object of this is that adequate 
arrangements for control may be made in time. 
But the nolice have no power to forbid the issue 



174Patna 



SITAHAM v. KINO-EMPEROR (Mulick, J.) 



192$ 



of a procession. Tin power to control does not 
include the power to forbid. (P 174, C 2] 

(6) General Police Act (5 of 1861) S. 8O 
I&ue of llcentes Signing and giving for 
delivery Is sufficient. 

In the Act the word " issue " has not been de- 
fined. ; but it signifies that, if the D. S. P. or 
Aseistant D. 8. P, signs the licensa and delivers it 
to some one with directions that it shall in due 
course be delivered to the applicant, the license 
has been issued within the moaning of 3. 30. 

[P 174, C 2] 

^ (c) General Police Act (5 of 1801), S. 30 
Once licence Is applied for, the applicant may 
take out his procewlon. 

On 03 an application is made in time the ap- 
plicant is frea to tak3 out his procession whether 
the license had by then bean issued or not. If 
the liconHo has boen issued, he is bound to obay 
the conditions whether it has beeii delivered or 
not : if, on the other hand, it has not been issued 
he is bound only to see that the general law 
was not broken. [P 1T5, C 1J 

S. N. Sdhay for Petitioner. 
'Assistant Uovt. Advocate for the Op- 
posite Party. 

Mullick, J. The petitioner has been 
fined a sum of Es. 5 for committing an 
offence under 8. 32 of the General police 
Act (Act V of 1861). 

It appears that in August 1923, the 
Superintendent of Police of Bhagalpur, 
acting under S. 30 of the General Police act 
(Act V of 1861) issued a general notice on 
the residents of certain quarters in the 
town of Bhagalpur requiring that all 
persons directing or promoting processions 
should apply to him for a license. On 
the "2 1st August 1924 the petitioner 
applied for a license to take out a religions 
procession. On the same day a license 
was prepared and signed by the Deputy 
Superintendent of Police, but on the 
back of it an endorsement was made by a 
police officer named Mr. Hare to the 
following effect: 

14 The petitioner must certify on the 
application that he understands the pro- 
visions under which the pass is issued. 
This license will not be issued until this 
ia done. " 

The petitioner never came for his 
lioenso nor was it sent to him ; but the 
petitioher on the 23rd August took out 
his procession. No disturbance took 
place and in fact the local Sub-Inspector, 
having learnt that the procession would 
issue, deputed certain police officers to 
accompany it. 

The Deputy Magistrate, who tried the 
case, sentenced the petitioner to a 
fine of Bs. 75 but on appeal the Sessions 



Judge reduced it to Bs., 5 holding that 
the offence was technical. 

In my opinion the petitioner has com- 
mitted no offence at all. S. 30 of fche 
Police Act gives the police power to con- 
trol processions. In order that this 
power may be exercised, the Act in 
certain circumstances authorizes the 
police to require persons to apply for 
licenses. The object of this is that ade- 
quate arrangements for control may be 
made in time. Clause (3) of S. 30 gives 
the police power to define the conditions 
on which a procession shall be permitted 
to take place. If any of these conditions 
are broken, the offence is punishable 
under S. 32. Similarly if there is a 
failure to apply for license, there is a 
violation of an order issued under S. 30 
and, therefore, an offence punishable 
tinder S. 32. But, so far as I can see the 
police have no power to forbid the is-ue 
of a procession. The power to control 
does not include the power to forbid. 

Section 30 does not prescribe how the 
conditions of a license are to be made 
known to the applicant ; but it is 
implied, I think, that the application 
shall bo made in sufficient time to permit 
of the conditions being communicated to 
the applicant. Ordinarily a day woulcl 
bo fixed by the police for the applicant's 
appearance to take the license or ar- 
rangements would bo made by him for 
its delivery to him or to his agent. If 
the applicant chooses to take out his 
procession after applying for his license 
and without waiting to acquaint himself 
with the conditions he does so at his 
own risk provided the license has been 
issued. In the Act the word " issue " 
has not heen defined ; but, I take it that 
it signifies that if the District Superin- 
tendent or Assistant District Superin- 
tendent of Police signs the license and 
delivers it to some one with- directions 
that it shall in due course be delivered 
to the applicant the license has been 
issued within the meaning of S. 30. In 
the present case if Mr. Hare intended 
tLat the issuing should not be complete 
till the license was actually delivered to 
the applicant in person, then the posi- 
tion is that the petitioner applied in 
time but did not wait for the issue of the 
license. In that case also it cannot be 
said that the petitioner has disobeyed 
any order passed under S. 30. S. 30 
required him to make an application in 



KESHO PJJASAD v. EAM SWARUP (Ross, J.) 



Patna 175 



time and he made it. As I understand 
the law ha was free to take out his pro- 
cession on the 23rd Augu it whether the 
license had by then been issued or not. 
If the license had been issued, he was 
bound to obey he conditions whether it 
had been delivered or not ; if on the 
other hand, it had not been issued he was 
bound only to see that the general law 
was not broken. The power of control 
and dispersal given to the Police by the 
Act was sufficient to secure the public 
safety. 

The learned counsel for the petitioner 
has also brought to our notice that tho 
-general notification in this case was 
issued so long ago as August 1 923 and it 
is urged that S. 30 of tho Act does not 
-contemplate that prohibitory orders of 
r fehis nature should remain in forco for 
such long periods. There is no restric- 
tion in the section itself, but it is obvious 
that some revision of the term is from 
time to time indicated with reference to 
liocal conditions. 

The result is that the conviction and 
the sentence are sot aside and it is 
-directed that the fine, if paid, bo 
/refunded. 



Ross, J. I agree. 



Conviction set aside. 



A. I. R. 1926 Patna 175 

Boss, J. 

Keslio Prasad Singh Plaintiff Appel- 
lant. 

v. 

Bam Swarup A'liir and others Defen- 
dants Respondents. 

Appeal No. 9 of 1923, D oiflrd on 1st 
July 1925, from the appelUuu decree of 
the Sub-J., Arrah, D/- 18th September 
1922. 

Bengal Cess Act (1880), Ss. 41 and l(yi Valua- 
tion statement prepared under Hie ActStatus of 
.tenant under Bengal Tenancy Act Is not affected 
Ctvll Courts cannot question the statements. 

According to S. 107 what is done under the 
Cess Act is done only for the purposes of that Act 
and has no other effect on the rights of persons. 
It does not in any way modify the conclusive, 
effect given by S. 93 to the cess valuation. Iu' 
determining the amount of cess payable the fact 
that trhe tenants are recorded in the Record of 
Eights as tenants at fixed rates is strictly irrele- 
vant. The question is not as to the status of the 
defendants under the Bengal Tenancy Act, but is 
as to their status and liability for the purjfosea 



of the Cehs Act \\hich under S. 41 must be deter- 
mined according to the entries in the cess valua- 
tion statement. The status of the defendants 
under the Bengal Tenancy Act is in no way affec- 
ted by this valuation which stands by itself and 
the civil Courts have no jurisdiction to interfere 
with it. [P. 176, 1, 2] 

L. N. Singh for Appellant. 
P. Dayal for Respondents. 

Judgment. This is an appeal from 
a decree of the Subordinate Judge of 
Arrah, varying a decree passed by the 
Munsif of Buxar. The plaintiff is the ap- 
pellant. He sued the defendants for rent 
and cess for 1325 to 1328 and the only 
question is as to the amount of cess legally 
payable by the defendants. 

The plaintiff's case was that the defen- 
dants were tenure-holders within the mean- 
ing of the Cess Act, that the annual value 
of their holding was Rs. 95-1-0 as entered 
in the cess valuation papers ; that the 
rent of their holding, as entered in the 
Record of Rights, was Rs. 31-0-6, and that 
consequently under S. 41. 01. (2) of the 
Cess Act the defendants wore liable to pay 
cesss at the rate of one anna in the ruj>oe 
calculated on the annual value of the 
holding, namely, Rs. 954-0, less half an 
anna in the rupee on the rent of the hold- 
ing : Rs. 3L-0-G. Tho defence was that the 
defendants were cultivating raiyats within 
the meaning of the Cess Act, and that 
they were liable only to pay cess under 
S. 41, Cl. (3) at the rate of half an anna 
in the rupee upon the rent of their hold* 
ing, Rs. 31.0-6. 

The Munsif held that the defendants 
were liable to pay cess at half an anna in 
the rupee on the annual value of their 
holding which was Rs. 95-4-0. There was 
an appeal by the plaintiff and a cross- 
appeal by the defendants. The plaintiff's 
appeal was dismissed and the cross-appeal 
was allowed and it was held by the Subor- 
dinate Judge that the defendants were 
liable to pay cess at half an anna in the 
rupee on Rs, 31-0-6. The plaintiff has 
come up to this Court in second appeal. 

The argument on behalf of the appel- 
lant is that under S. 93 of the Cei3s Act 
the civil Courts have no jurisdiction to 
question the cess valuation. Section 93 
provides that : "Every valuation under this 
part shall be open to revision by the 
Commissioner or Board of Revenue, and 
not otherwise." Now the coss valuation 
statement shows the names of fche defen- 
dants in column 1 which isheac}ed : "Name 
of zemindars, tenure-holders and sub- 



176 Patna 



SIBAN BAI v. BHAGWANT DASS 



1926 



tenure -hold era/' In column 2 of which 
the heading is "Nij-jote and other assessed 
areas of landlords" is entered^Bs. 63-3-0. 
In column 3 which is headed "Baiyatwari 
lands' 1 is entered Bs. 32-1-0. The total 
valuation is given in column 7 as Bs. 
95-4-0 and that is the total of columns 
2 and 3. Column 8, which is headed 
"Bevenue or rent on which deduction 
under S. 41 is allowable," shows an entry 
of Rs. 31-0-6. The appellant contends 
that, on this document, it must be taken 
/or the purposes of the Cess Act that the 
defendants are tenure-holders ; that the 
annual value of their holding is Rs. 95-4-0 
and that deduction is allowable under 
S. 41 on the rental of Rs. 31-0-6 ; in other 
words, that this document establishes the 
plaintiff's claim. 

The argument on behalf of the respon- 
dents is that the defendants are recorded in 
the Record of Rights as tenants at fixed 
rates at a rental of Rs. 31-0-6 and that 
they must, therefore, be assessed as culti- 
vating raiyats, and that their liability is 
determined by S. 41, 01. (3). The argu- 
ment based on S. 93 is sought to be an- 
swered by a reference to & 107 which 
says : "Nothing in this part contained, 
and nothing done in accordance with this 
Act, shall be deemed to affect the rights 
of any person in respect of any immov- 
able property or of any interest therein 
except as otherwise expressly provided in 
this Act." Now the meaning of this sec- 
tion is clear, namely, that what is done 
under the Cess Act is done only for tho 
purposes of that Act and has no other 
effect on the rights of persons. It does 
not in any way modify the conclusive 
effect given by S. 93 to the cess valua- 
tion. The fact that the defendants are 
recorded in the Record of Rights as 
tenants at fixed rates is strictly irrelevant 
to the present question. The question is 
not as to the status of the defendants 
under the Bengal Tenancy Act ; the ques- 
tion is as to their status and liability for 
the purposes of the Cess Act. The .Re- 
venue authorities have determined that 
the defendants are tenure-holders and 
that the annual value of their holding is 
Bs. 95-4-0 of which Bs. 63-3-0 is in 
respect of lands held by themselves and 
Bs. 32-1-0 is in respect of lands let out 
to tenants. 

It is argued for the respondents that 
the question in the suit is as to the 
defendants' liability to pay and that this 



has to be determined under S. 41 and 
involves the question of th y defendants" 
status. But it is not their status under 
the Bengal Tenancy Act that is in ques- 
tion, but their status under the Cess Act 
and their liability under S. 41 must be* 
determined according to the entries in tha 
cess valuation statement. This statement 
was compiled in the presence of the* 
defendants ; and, if they were aggrieved 
at the entry, they ought to have ap- 
pealed to the Commissioner or to the 
Board of Revenue as provided by S. 93. 
Not having done so, they are coucluded. 
by the entry in the valuation statement. 

It is obvious that a great injustice 
would bo done to the plaintiff if the* 
defendants' contention were to prevail* 
The plaintiff has been made liable for cess- 
on a valuation of which one of the item* 
is the annual value of the defendants" 
tenure. If it were now held that the* 
defendants were not tenure-holders, then 
the liability for this cess will fall on the 
plaintiff alone through no fault of his,, 
but because the defendants had failed to 
contest the entry. In my opinion it was. 
for the Revenue authorities to decide 
whether the defendants were tenure- 
holders of cultivating raiyats for 'the pur- 
poses of the Cess Act and in this matter 
the entry in the Record of Rights is 
wholly irrelevant. The status of the 
defendants under the Bengal Tenancy Act 
is in no way affected by this valuation! 
which stands by itself and the civil 
Courts have no jurisdiction to interfere! 
with it. 

I would, therefore, allow this appeal 
with costs and decree the plaintiff's suit 
in full. The plaintiff is entitled to his. 
costs in all the Courts. 

Appeal allowed- 



A. !. R. 1926 Patna 176 

MULLIOK AND MACPHERSON, JJ. 

Siban Eai Petitioner. 
v. 

* Bhagwant Dass &nd another -Opposite- 
Party. 

Criminal Bevision No. 104 of 1925, 
Decided on 12th June 1925, from an 
order of the Dist. Mag., Darbhanga, D/~ 
6th January 1925. 



1*26 



SIBAN BAI v. BHAGWAXT DASS,(Mullick, j.) 



Criminal P.C., 8. 439#0fc Court will 
interfere only In exceptional ewes e.g., wfore tliere 
Is denial of fair trialIn cognizable ca*es, private 
prosecutor kai no locus standi at all (Mullick, J. 
Macpherson, J. Contra). 

Per Mulltck, T. The power of interference in 
revision should be most sparingly exercised and 
only in cases where it is urgently demanded in 
the interests of public justice, e.g., cases in which 
there has been a denial of the right of fair trial 
and which attract the op?ration of S. 107 of the 
Government of India Act. In cognizable cases 
the private prosecutor has no position at all and 
that if the Crown decides to let an offender go, no 
other aggrieved party can bo heard to object that 
he has not taken his full toll of private vengeance. 
The Crown and not the complainant is always the 
party. [P 177, C 2 ; P 178 C 1 

Per Macpnerson, J. The High Court possesses 
the power to set aside an acquittal under S. 489 on 
being moved by a private person, and this power in 
not restmtad to cases where there has been no 
tria'. or \vh?re there has been a denial of the rig lit 
of iiki-* trial. It cannot be Laid down that in every 
case of a prosecution for a cognizable offence th 
private prosecute r in India has no position at all 
in the litigation. Neither principle nor authority 
supports the view that an application under S, 439 
against an acquittal is not maintainable in a pri- 
vate prosecution where the offence charged is 
cognizable. ' - [P 178 C 2, P 179 C 2J 

Ali Imam and S. A. Sami for Peti- 
tioner. 

Earn Prasad for Opposite Party. 
Sultan Ahmad for the Crown. 

Mullick, J. In this caso the Second 
Class Magistrate of Saraastipur found 
that Mahanth Ganga Das had title and 
possession in an asthal at Waini and that 
the accused Bhagwat Das and Narain 
Das had forcibly dispossessed him and 
committed criminal house trespass in a 
building appertaining to the asthal. He 
therefore convicted the accused under 
S. 448 of the Indian Penal Code and sen- 
tenced them to a fine of Ks. 50 each. 

In appeal the District Magistrate o^ 
Darbhanga found that the story of forci- 
ble dispossession was false and that Bhag- 
wat Das and Narain Das were in posses- 
sion and that they had sucessfully re- 
sisted an attempt by Siban Bai, the ser- 
vant of Ganga Das, to forcibly evict them 
from the asthal. He found that the 
accused had no right to stay in the asfchal 
against the will of Ganga Das ; but at the . 
same time the case of Ganga Das being 
false in material particulars, he acquitted 
the accused. 

An application in revision is now mad* 
before us to set aside the , acquittal, and 
1926 P/23 & 24 



177 



whether this Court 



the question arises 
should interfere. 

Ganga Das made an application to the 
Local Government requesting it to lodge 
an appeal under S. 417 of the Criminal 
Procedure Code, but the Local Govern- 
ment refused on the ground that the case 
was not one of sufficient public impor- 
tance. 

In now asking us to interfere in revi- 
sion the petitioner relies upon the follow- 
ing cases of the Calcutta High Court- 
Shaikh Bazu v. Railca Singh (l) ; Harai 
Chandra Nama v. Osman Ali (2) ; Nabin 
Chandra Chakrabarty v. Rajendra Nath 
Bauer je& (3). In these cases a re-hearing 
was ordered by the High Court on the 
ground that there had not been a suffi- 
cient trial in the Court below; the decisions 
were based on the special facts of each 
case, but it was not till Faujdar Thakur 
v. Kasi Chaiifdhuri (4) that any attempt 
was made to define the principles upon 
which the High Court will interfere in 
revision. That caso was noticed with 
approval by this Court in Gulli Bhagat v. 
Narain Singh (5) and by a Pull Bench of 
the Madras High Court in A. T. Sankara m 
linfja Mudaliar v. Narayana Mudaliar 
(6), and I think it is now settled that the 
power of interference in revision should 
be most sparingly exercised and only in 
cases where it is urgently demanded in 
the interests of public justice. 

The rule of course does not apply to 
cases where there lias been no trial. For 
instance, in Jitau Dusadh v. Domoo Sahu 
(7) this Court set aside an acquittal in 
revision because an acquittal had been 
entered without trial and under an error 
of law. In that case the complainant 
having died the Magistrate refused per- 
mission to the complainant's son to pro* 
ceed with the case and acquitted the 
accused, and the District Magistrate 
moved the High Court in revision. On 
the other hand, in Rajkishore Dubey v. 
Ram Pratap (8), a Division Bench (Mul- 
lickjand J^cpherson, XT.) of thifl ^ojart 

(1) Uoii] 18 C.W.N. 1244^=15 Or. LJ. 722. 

(2) (l917] 27 C. L. J. 226-=19 Or. L. J. 321. 

(3) [1917] 18 Or. L. J. 519. 

(4) [1914] 42 Gal. 612-19 0. W. N, 184=21 

C. L. J. 6316 Or. L. J. 122. 

(5) A. I. B. 1924 Patna 288. 

(6) A. I. B, 1922 Had. 502. 

(7) [1916] 1 P. L. J. 264-^20 C. W. N. 862=13 

Cr. L. J. 151=2 P. L. W. 409. 

(8) Or, BCT. No, 229 of 1923, 



178* Patria 



SIBAN SAi v. BHJLQWANT DASS (Macpherson, J.) 



1929 



declined to interfere even though there 
was a clear error in the lower appellate 
Court's judgment r We have not been 
shown any case in which a High Court 
has interfered in revision on the ground 
that the inferences drawn from 'evidence 
wera erroneous. 

In my opinion the Legislature does not 
intend that a private party shall secure 
fcy an application in revision a right 
which is reserved for the Crown only. 
The High Court has the right to interfere 
but will only do so in very exceptional 
cases, which, it may be stated, generally, 
are cases in which there lias been a denial 
of the right of fair trial and which attract 
the operation of S. 107 of the Government 
of -India 'Act. Nor does it intend that 
the High Court will interfere in revision 
to correct an error when another remedy 
exists. 

In England where any member of the 
public may set the criminal law in 
motion, there is no procedure at all for 
setting aside an acquittal. In France, 
where the law jjermits in most criminal 
cases a private injured party to intervene 
as a partic civile, the right of appeal 
against an acquittal is accorded only to 
bhe Crown. Neither system permits a 
private prosecutor to control the proceed- 
ings if the Crown objects. 

Nor is the private prosecutor's control 
my greater under the Indian law though 
be is entitled in certain cases to com* 
pound with the offender : see Jamuna 
Kanth Jha v. Eudra Kumar Jha (9). 

I am still therefore of the opinion 
which I expressed in Gulli Bliayat v. 
Narain Singh (5) that in cognizable cases 
the private prosecutor has no position at 
all and that if the Crown, which is tho 
custodian of the public peace, decides to 
let an offender go, no other aggrieved 
party can be heard to object that he has 
not taken his full toll of private ven- 
geance. These observations were made 
with reference to a private party's power 
to get an acquittal set aside in a cogni- 
zable case which had been conducted by 
Public Prosecutor ; but if it were neces- 
sary here I would be prepared to hold 
that they apply with equal force to 
acquittals in all cases. The Crown and 
not the complainant is always the party : 
see Queen-Empress v. Murarji Gokul 

(9) 11919]' 4 R L. J. 656=11920) P. H. 0. C. 
42=20 Or. li. J. 848. 



Das (10) and Gay a Prasad v. Bhagat 
Singh (11). 

If that view is correct, then the circum- 
stance that in the present case Mahahth 
Ganga Das, in spite of delivery, of 
possession by the civil Court, is being 
deprived by the judgment-debtor of the 
enjoyment of his rights, is no ground for 
our interference in revision. There has 
been no denial of the right of fair trial. 
The District Magistrate has considered 
the evidence and if he has come to a 
wrong conclusion, it certainly cannot be 
said that there has been no fair trial. He 
has found that the complainant's story 
that the accused came with a mob and 
drove out Ganga Das's servants was 
false and that Bhagwat Das was in posses- 
sion and that it was the complainant 
who attempted to forcibly eject him. If 
the true facts had been put by the com- 
plainant before the Court, I ha've no 
doubt that he would have succeeded, and 
if Bhagwat Das persists in occupying 
the land and house which formed the 
subject-matter of the civil Court decree 
against him, the criminal Courts are still 
open to him. The present application is 
misconceived and is dismissed. 

Macpherson, J. I agree to the orde** 
proposed. 

In my opinion the application -must fail 
on the simple ground that it is not even 
possihlo to nay that the acquittal by the 
appellate Court (which rightly found 
that the case which petitioner set out to 
prove was false) was not in the circum- 
stances warranted. If an appeal had been 
preferred by the local Government under 
S. 417, it would have failed for the 
same reason. 

The question whether a private person 
has any locus standi to move the High 
Court against an acquittal, and if so in 
what circumstances has, however, been 
argued at length and claims an expression 
of opinion. 

I agree with the Government Advocate 
when he concedes that the High Cou*t 
possesses the power to set aside *tib 
acquittal under S. 439 on being 
moved by a private person. But I am 
unable to accept his contention th&t 



(10) [1888] 13 Bom. 389. 
(ID 



[1908] 80 All. 52585 I. A. 189=10 Bom. 
L. R. 1080=4 M. L. T. 204x=12 C. W. N. 
1017=^8 C. L. J. 887=18 M, L. J. 394=5 
A. L. J. 665=14 But. L. B. 818=11 0. C. 
871 (P. 0.). 



SIBAN RAI V..BHAGWANE PASS (Macpherson, J.) 



Pallia 179 



thfct'power is either in law or under the 
practice of the Courts in India* definitely 
restricted to oases where, as in Damoo 
Sahu v. Jitan Sahu (7) there has been no 
trial, or where there has jDeen a denial of 
the right of fair trial. All that can be 
said to be established is that in that 
class of cases at least the Court will 
in a proper case set aside an acquittal at 
the instance of a private party. No doubt 
the High Court will in exercising its 
power of revision under S. 439 observe 
the limitations which established practice 
has imposed upon appeals under S. 417. 
But though in practice the broad rule of 
guidance that the Court will only inter- 
fere in revision with an acquittal, at least 
in a case where there has been a trial, 
sparingly and only where interference is 
urgently demanded in the interests of 
public justice. [Faujdar Thakur v. Kasi 
Chaudhuri, (4)] may be accepted, it ap- 
pears dangerous to go further. I was a 
party to the decisions in Rajkishore 
Dubey v. R<im Part:ip (S) and Gidli 
Bhayat v. Narain Singh (o) decided on 
successive days, but my considered opi- 
nion is to be found in the subsequent deci- 
sion in Liang a Singh v. Rambhajan Singh 
(12) where, after referring to the 
cases abovi cited, 1 said ' But 
it is not possible nor would it be 
expedient to lay down a general principle. 
The Court; will interfere where the 
circumstances require it." 

In particular I am not prepared to sub- 
scribe to the view that in every case of 
i prosecution for a cognizable oifence the 
private prosecutor in India has no 
position at all in the litigation. It might 
possibly be contended that at least where 
the prosecution has in fact been a public 
or, as it is designated, a police prosecution 
the private prosecutor has no position 
at any stage. I doubt whether even such 
a contention is tenable, though of course 
the Court acting in revision would in 
such a case enquire earnestly why the 
Grown has not appealed. But in any 
4Hren$ the criterion cannot be whether 
tb0-r police could under the law arrest 
without warrant for the offence under 
trial irrespective of whether they did so 
and initiated a public prosecution tinder ' 
the Code of Criminal Procedure ; it is 
open to the private prosecutor to initiate 
criminal proceedings by complaint wifch- 
qut the intervention of tbe police, and 
,(13) JL L 



where that has been done, and the pro- 
secution has not been taken over by the 
Crown, a private proecutor cannot in my 
judgment be said to be without position 
in the litigation even if the offence 
is cognizable. The majority of prosecu- 
tions for criminal trespass and house 
trespass which are conizable offences 
are private. I cannot hold that either 
principle or authority supports the view 
that an application under S. 439 against 
an acquittal is not maintainable in a 
private prosecution where the offence 
charged is cognizable. 

Again too much stress may eisily be 
laid upon tho remedy available under 
, S. 417 oven in police oases. An appeal 
against acquittal is a special weapon in 
its armoury which a local Government 
judiciously reserves for exceptional 
occasions, and which is only used after 
most anxious consideration and in cases 
which aro themselves of groat public 
importance or in which a principle is 
involved. It canViot bo expected that 
Government will dull the edge of that 
salutary provision by utilizing it freely 
in cases which, though of importance to 
individual subjects, are of no, or of little, 
general interest. Actually therefore, a 
remedy under S. 417 is practically non- 
existent in the less heinous cases whether 
they aro private or public prosecutions. 
Yet where justice fails in this country, 
it undeniably does so at least as much 
by erroneous acquittal as by erroneous 
conviction. 

In my judgment it is neither 'necessary 
nor expedient to lay down or even 
suggest any limitations in this regard 
beyond tho practice of the High' Court 
in appeals under S. 417 and tho prin- 
ciples which guide the Court in re- 
ceiving and determining under S. 439 
applications for the exercise of their 
powers of revision in respect of convic- 
tions. I would adhere to the view ex- 
pressed by Jenkins, 4 C. J., in Foujdar 
Thakur v. Kasi Chaudhuri (4) read in 
the light of the observations of the. same 
Judge in Emperor v. Bankatram Lachi' 
ram (13) and Mahomed All v. Em- 
peror (14) as to the spirit which should 
guide the Courts in the exercise of their 
discretionary powers in revision. The 
result may in practice not differ greatly 

(18) [1904], 28 Bom. 533=6 Bom L. R 379 
) [1913] 41 OaL 460=14 Gr. L. J " 
C. W. N. 1 



180 Patna 



TABKESHWAE t. DEVENDBA (Boss, J.) 



19BB 



from tbat which would he obtained by 
laying down and following detailed rules. 
Doubtless tfie Court will only interfere 
in revision with an acqultal in an excep- 
tional case. But the supreme considera- 
tion is that the Court should exercise 
its discretion untramelled in each case 
AS it arises* 

Application dismissed. 



A. I. R. 1926 Patna 180 

DAS AND Boss, JJ. 

Tarkeshwar Prasad Teivari Appellant, 
v. 

Devendra Prasad Tetcari Respondent 

Appeal No. 265 of 19S1, Decided on 
20th June 1924, from the Original decree 
of fche Acldl, Sub-J., Patna. D/-14th Sep- 
tember 1921. 

(a) Evidence Act, S. 7G Plaint Is not a public 
document. 

Certified copy of a plaint is not admissible in 

proof of age of the Hignntory as plaint is not a 

public document. [P 181, C 1] 

(6) Patna High Court Rules, St. 39Construction, 

Rule 30 muyt be construed as subject to Rr. 1 

nd4. [P18l,C 1] 

C. C. Das, S. M. Gupta, Ram Prasad 
and Janak Ki shore for Appellant. 

S., P. Sen and A.T. Senior Res- 
pondent. 

ROM, J. The question in this appeal 
is a pure question of fact and relates to 
the origin of Tarkesh\var, Defendant 
No. 1. 

Sheo Prasad Tiwari had two sons, Ram 
Partap alias Halkhori and Maheshwar 
Dtitt alias Duttan. Ram Pratap had 
two sons, Rarnrup and Ramsuraj, by his 
wife Parbati. The plaintiff Debendpa 
Prasnd Tiwari is the son of Ramrup and 
his wife Hartalika. The question for 
decision in the suit is whether Tarkesh- 
war if? the posthumous son of Ram Suraj 
and his wife Harnandan Kuer. Ram 
Pratap died in 1899. The plaintiff al- 
leges that both his sons were then minors 
and the management of the property was 
assumed by Maheshwar Dutt. Even after 
he attained majority Ramrup was incap- 
able of managing his estate being of weak 
inUUect and dissolute habits. His 
mother then formed the idea of marrying 



one of her sons in the- family of a man 
of affairs and accordingly Ram Suraj wask 
married to Harnandan Kuer, the grand- 
daughter of one 'Nanku Pande, who i& 
described in the plaint as "a successful 
tout practising in the district of Patna* 
possessed of great tact and fully capable 
of understanding business and managing 
zamindari affairs". Nanku Pande then 
took up the management of the estate- 
acting in consultation with Maheshwar 
Dutt. 

The plaintiff alleges that Ramsuraj' 
died on the 23rd of Bhado 1313 two years 
after his marriage. On the death of Ram* 
suraj Nanku Pande took Harnandan Kuer 
to his house at Machuatoli in Patna and 
set up Tarkoshwar who was the son of 
one Banke Singh, a constable, by his mis- 
tress as the son of Ramsuraj and Harnan- 
dan Kuer. Maheshwar Dutt is also al- 
leged to have had illicit connexion with 
the mistress of Banke Singh and to have 
acted in collusion with Nanku Pande in 
this matter. In 1317 Ramrup also died. 
The main case is stated in paragraphs 17 
and 18 of the plaint in these words : " To 
the best of the plaintiff's knowledge on 
enquiry no son or daughter was horn to 
Kamsuraj Tiwari of the womb of Mt. 
Harnandan Kuer. When Ramsuraj Ti- 
wari died he was only 13 years old and 
could nob possibly beget a child at that 
age, and it was not at all a fact that ML 
Harnandan Kuer was pregnant at this 
time of I his death. Defendant No, 1 is 
not at all the son of Ramsuraj Tiwari 
nor did the latter beget him nor was he> 
born of the womb of Harnandan Kuer. 
On the other hand he was born of the 
womb of Banke Singh's mistress and his 
father is Banke Singh resident of mouza 
Bairia." The plaintiff claims a declara- 
tion that the Defendant No. 1 is not the 
son of Ramsuraj Tiwari and lias no title to 
the property of the family and a decree for 
confirmation of his possession or recovery 
of possession (His Lordship then discussed 
the oral evidence and proceeded). 

The documents referred to in this con* 
nexion are these ; Ex, R which has been 
discussed above : Ex. X 37 this is the cer* 
tified copy of a pjaint dated the 10th of 
March 1900 which purport* to have been 
signed by Ramrup for self and for Ram- 
surij Tiwari minor. I doubt whether 
this document was admissible in evidence. 
The learned Subordinate Judge apparently 
followed the ruling, ia Shazada, 



TULSHI PR AS AD, V. DdMRAON MUNICIPALITY (Muliick, J.) Pataft 181 



f926 

Skahzbuddin v. Darnel Wedgeberry (I). 
The soundness of this ruling h \s been 
questioned by Field (Law of Evidence, 7fch 
Edition, p. 236) and Woodroffe (Law of 
Evidence, 7th Edition p. 528) in their 
commentaries on the Evidence Act. It 
has not been followed on the Original 
Side of the Calcutta High Court. I can 
see no ground for making a distinction 
between plaints and written statements 
nor is there any reason why the certified 
copy of one should ba admissible in evi- 
dence while the certified copy of the 
other is not. Neither is a public docu- 
ment. In my opinion Ex. X-37 should 
not have been admitted in evidence. 
(The judgment further dealt with the 
documentary evidence and continued.) 
I find nothing in these papers which 
convincingly establishes Tarkeshwar's an- 
cestry as alleged by the defence. 

The result is that the appeal must be 
dismissed with costs. 

Permission was given in this case by 
the learned Registrar to the appellant to 
have type written copies of the papers 
prepared instead of the ordinary printed 
jpaper-book. The learned Registrar ap- 
.jparently relied upon the provisions of 
R. 30 in Oh. 9 of the rules of the 
High Court which empowers him to ex- 
empt any appellant or respondent from 
the operation of the whole or any part 
of the rule? of the Chapter. Now R. 1 
directs that the paper book shall be 
printed in accordance with the directions 
therein laid down. R. 4 provides that 
in every case in which an appeal has been 
admitted the Registrar shall cause a 
paper-book to be prepared in accordance 
with the rules of this Chapter with the 
i proviso that in small or urgent cases 
where good cause has been shown the 
Registrar may allow any party to put in 
typed copies. The construction placed 
upon R. 30 makes the proviso to R. 4 
superflous ad R. 30 must be construed 
as subject to Rr. 1 and 4. In my opU 
nion the learned Registrar had not autho- 
rity to exempt the appellant from having 
a printed paper-book prepared in this 
case. 
JDat, J. I agree. 

Appeal dismissed. 



A I. R 1926 Patna 181 

MULLIOK AND ROSS, JJ. 



Appellant. 



T tilth i Prasad 



v. 



(1) 10 B. L. a App. 31. 



(J". A. W. Wilton) Chairman, 
Municipality Respondent. 

Appeal No. 488 of 1922, Decided oa 
14th May 1925, from a decision of the 
Sub-J., Second Court, Arrah, D/- 13th 
February 1922. 

Bengal Municipal Act (8 of 1884), Ss. 6 (3j, and 
85-. 4 Adjacent plots held by same, person <is owner, 
one by survivorship and the oilier by purclia$e> 
constitute one holding -Separate assessments are 
not legal. 

Where two adjacent plots of land arc hold by 
the same person as owner, they must be deemed to 
be held by him under one title and constitute one 
holding within the meaning of 8. 6 (3). it makes 
no difference that one plot was acquired by tiurvi- 
vorship and the other by purchase. In aucb 
oas3 the owner of the plots is liable only to an 
assessment in respact of the plots under S. 85- A of 
the Act and 15 ot to separate assessments in respect 
of each plot. [P. 181, 0. 2, P. 182, 0. 2} 

K. P. Jayaawil, S. Af. Gupta mid 
Janak Kishorc for Appellant. 

Rai Guru Saran Prasad and Anand 
Pras<idtor Respondent. 

Mullick, J. The appellant hold* four 
plots of land in the Dumraon Munici- 
pality. Plot No. 7 is his ancestral pro- 
perty and Plot No. 8 was purchased in 
the name of his son ; again Plot No. 49 is 
his ancestral property and Plot No. 50 
has .been acquired by purchase. The 
Dumraon Municipality have assessed the 
appellant with personal tax on the foot- 
ing that he is the occupier of four hold- 
ings. He contends that Plots Nos. 7 arid 
8 form one holding and Plots No. 49 and 
50 one holding and that he is liable to 
assessment only in respect of two holdings, 
He has been assessed Rs. 8i on each of 
the Plots Nos. 7 and 8 and Rs. 28 on each 
of the Plots Nos. 49 and 50. He claims 
that he is liable to pay Rs. 84 on Plots 
Nos. 7 and 8 and Rs. 28 on Plots Nos. 49 
and 50. 

The question is whether Plots Nos. 7 
and 8 constitute one holding witHin the 
meaning of S. 6 (3) of the Bengal Munici- 
pal Act. It is clear that the plots being 
adjacent are bounded by one set of boun- 
daries. The only question is whether they 
are held under one title. The appellant's 
interest is ownership. It makes no differ- 
ence that he has acquired it in respect of 
one plot by survivorship and the other 



182 Pfttna HAftiHAR SINGH v. EMBEDS (Kulwant Sahay, J.) 



192* 



* * i ' * 

by purchase. Thfcre Is Ho reason why we 
should read the word " title" in S. 6 as 
"title-deed." The provision that the 
land shall be held under one title or 
under one agreement means that where 
the assessee has no title, hut holds under 
an agreement without any interest in th6 
land, then all plots covered within the 
same set of boundaries and by the same 
agreement will form one holding. The 
proviso in the Explanation to S. 6 (3) is 
not relevant to the discussion now be- 
fore us, 

In my opinion Plots Nos. 7 and 8 form 
one holding and the appellant is liable 
only to one . assessment in respect of it 
under S, 85-A of the Act, The same 
observation applies to Plots Nos. 49 and 
50, 

The result is that the appeal succeeds 
and is decreed with costs in all Courts in 
proportion to a claim of Rs. 122. 

Ross, J. I agree. 

Appeal allowed. 



A. 1R 1926 Pfttna 182 

KULWANT SAIIAY, J. 

Harihar Singh and others Appellants^ 
v. 

Emperot Opposite Party. 

Criminal Appeal No. 116 of 1924, Deci- 
ded on flth September 1924, against an 
order of the S. J., Shahabad, 

Penal Code, S. 84 All accused abetting of 
aiding each other by presence or other acts in the 
coMiuitoh'K of the act are equally liable. 

The question whether a particular criminal act 
xnay bo properly held to have boon " done by 
several persons " within the meaning of the 
section cannot be answered regardless of the facts 
of the caso. In order to convict a person for an 
off (3ii ce \vith the aid of the wro\isions of S. 34 it is 
not necessary that that person shoiild actually 
with hib o\\ 11 hand commit the criminal act. if 
several persons have the common intention of 
doing a particular criminal act and if in fur- 
therance of that common intention all of them 
join together and aid or abet each other in the 
cornnms.son of the act, then although one of these 
persons may not actually with his own hand do 
the act, but if he helps by his presence or;jby other 
acts in the commission of the apt, he would be 
hold to have done that act within the meaning of 
8. 34. A. I. R. 1924 Co/. 257, Poll. 

[P. 183, 0, 2, P. 184, C. 1] 

Hyde? J7?iaMT~for Appellants. 

Govt. Pleadci for Opposite Party. 

Judgment. The appellant Harihar 
Singh has been convicted by the Sessions 



Judge of Shah abaci under S. 324, Indian 
Penal Code, and sentenced to 18 months' 
rigorous imprisonment ; and the appellant 
Jugal Singh has been convicted under 
S. 324/34, Indian Penal Code, and sen" 
tenced to 6 months' rigorous imprison* 
ment. They have been found guilty of 
voluntarily causing hurt to one Braham* 
deo Singh who is distantly related to the 
appellants. The prosecution story shortly 
stated is as follows : 

Harihar Singh is the uncle of Jugal 
Singh. One Charittar Singh, who was 
also charged along with the appellants for 
an offence under S. 324 read with S. 34, 
Indian Penal Code but has been acquitted 
by the learned Sessions Judge is a cousin, 
of Harihar Singh two or three degrees 
removed. The complainant Brahamdeo 
Singh is also a distant cousin of Harihar 
Singh. Harihar Singh had another cousin 
Kartik Deo Singh who died about ten 
years ago leaving a young widow Mt. Piaro 
Kuer. Tliis Kartik Deo Singh was the first 
cousin of Harihar Singh. The complainant; 
Brahamdeo Singh had some intrigue with, 
the widow Mt. Piaro Kuer and about 
2 or 2*1/2 years ago he eloped with the 
widow and went to Calcutta with her. 
The widow, however, left Brahamdeo 
Singh at Calcutta and there is no trace of 
her. The appellant Harihar Singh and 
the members of his family were highly 
enraged with Brahamdeo Singh for taking 
away the widow and for fear of the appel* 
lants and his family, Brahamdeo Singh 
stayed at Calcutta for about 2 or 2-1/2 
years and accepted service there as th 
gateman in the Howrah Eailway Station. 
It is alleged 'that Brahamdeo Singh had 
left three nephews at hia house at Brarhi 
when he went to Calcutta, and in his- 
absence the appellants vexed the nephews 
so much that they had to leave the house 
and they went to reside with a relative of 
theirs in a different village. Brahamdeo 
Singh returned to his village about fonp 
months before the occurrence. He firsts, 
went to the place where his nephews- 
were living and then he came to his house* 
at Brarhi. He found that the doors and 
shutters of his house had been taken out 
and /everything else had been removed 
and the two appellants and Charittar, 
Singh were sitting in the court-yard of the- 
house* He enquired from them as to* 
what had become of the doors and shut- 
ters upon which ' the appellants andi 
Charittar Singh chased him with the* 



SIKGH v. EMPEROB (KKlwanfc Sahay, J.) 



Patnr;i8S 



object cfc beating him with Mathis. 
Braharmdeo Singh tied from the place and 
went '.(Jjxect to Buxar where he filed a 
complaint before the Sub-Divisional 
Magistrate* Upon a report of the Police 
the Sub- Divisional Magistrate summoned 
the appellants and Charittar Singh and 
a case under Ss. 447 and 352, Indian 
Penal Code was started against them. 
Brahamdeo Singh was living at the place 
of his relatives or friends at different 
places and on the 10th February 1924, a 
Court peon Abdul Mian went to Brarhi 
to serve summons upon the witnesses in 
the case under S. 447 against the appel- 
lants. Braharacleo Singh went to Brarhi 
to have the summons served and was 
sitting at' the darwaja of Bahadur Singh, 
Prosecution -Witness No. 10. The sum- 
monses, however, could not be served 
upon the witnesses inasmuch as none of 
the witnesses was found at his homo 
and the Court peon left the place at 
about 1 p.m. Thejcomplainant, however, 
stayed in the dhaba of Bahadur Singh 
and Nirbhai, Bahadur Singh and Ram- 
palak Singh and others were also 
sitting in the same dhaba. It is al- 
leged that while Brahamdeo Singh was 
lying down in the dhaba with his head 
supported on the pa]m of his hand and 
was talking with Rainpalak Singh Witness 
No. 5, she appellants and Charittar Singh 
came at the dhaba, the appellant Harihar 
Singh being armed with a sword and the 
appellants Jugal Singh and Charittar 
Singh being armed with lathis and while 
Charittar Singh and Jugal Singh stood at 
the entrance of dhaba Harihar Singh 
struck Brahamdeo Singh with a sword 
twice. The first blow hit him on the left 
kneecap upon which Brahamdeo Singh 
stood up, and while he was getting up 
Harihar Singh aimed a second blow with 
the sword which Brahamdeo Singh warded 
off, but in doing so had his two fingers of 
the 'left hand injured. The witness 
Eampalak Singh attempted to seize the 
sword and he was also slightly injured. 
The complainant Brahamdeo Singh fled 
from the place through one of the doors 
of the dhaba and went straight to the 
police station where he lodged his first 
information at 7 p. m., the occurrence 
having taken place in the afternoon of 
the t 10th February 1924. (His Lordship 
after discussing evidence confirmed the 
conviction and sentence on Brahamdeo 
Singh and proceeded as follows.) 



As regards Jugal Singh he has been 
convicted under S. 324 read wityj3. 34> 
Indian Penal Code. The evidence so far 
as he is concerned is clear that he weni 
to the place of occurrence with Harihar 
Singh and had a lathi in his hand ; that 
he stood at the door with the lathi while 
Harihar Singh struck Brahamdeo with the 
sword. There is evidence"that when Brabr 
amdeo Singh wanted to run away Jugal 
obstructed his passage and prevented him 
from getting out of the dhaba. That he 
came with Harihar Singh and was stand- 
ing at the entrance of the dhaba with the 
lathi in his hand is deposed to by almost all 
the prosecution witnesses and thero is no 
reason t6 differ from the learned Sessions 
Judge about his presence with the lathi 
at the place of occurrence. The question 
is, whether he can be convicted under 
S. 324 read with S. 34, Indian Fenal 
Code. In order to make him liable under 
S. 324 it is necessary to prove that the 
criminal act of assaulting Brahamdeo was 
done by Jugal Singh also. It has'been 
argued by the learned counsel for the 
appellants that upon the evidence it is 
clear that Jugal Singh did not take part 
in the assault and, therefore, ho is not a 
person by whom the criminal act was 
done in tho pro^nt case as provided by 
S. 34 of tho Indian Penal Code. S. 34 
provides that when a criminal act is done 
by several persons in furtherance of the 
common intention of all each of such 
persons is liahle for that act in the same 
manner as if it wove done by him alone. 
The question is whether in the present 
case tho criminal act, ramely, the assault 
upon Brahamdeo Singh was done by Jugal 
Singh within the meaning of S. 34, Indian 
Penal Code. Tho question as regards tho 
proper moaning and effect of S. 34 has 
been the subject of consideration in a 
large number of cases. Tho latest case in 
which the question was very exhaustively 
considered by a Full Bench of the Cal- 
cutta High Court is the case of Emperor 
v. Barendra Kumar Ohose (1). In that 
case all the previous cases dealing on the 
point were very exhaustively considered 
and it was held that the question whether 
a particular criminal act may be properly 
held to have been " done by several 
persons " within the meaning of the 
section cannot be answered regardless of 
the facts of the case. In order to convict 
a person for an offence with the aid of the 
~~(i7~A~. i. H. m* Ual. *67.lF. B,), 



164 Pfttna 



PEARI DAI v. NAIMISH CHANDRA (Bucknill, J.) 



1926 



[provisions of S. 34 of the Penal Code it is 
not necessary that that person should 
actually with his own hand commit the 
criminal act. If several persons have the 
common intention of doing a particular 
criminal act and if in furtherance of that 
common intention all of them join to- 
gether and aid or abet each other in the 
commission of the act then although one 
of these persons may not actually with 
his own hand do the act, if he helps by 
his presence or by other acts in the 
commission of the act, he would be held 
to have done that act within the moaning 
of S. 34. 

Reliance has been placed by the learned 
counsel for the appellants upon the case 
of Struyhan Patar v. Emperor (2). The 
facts of that cane, however, have no 
application to the present case. It was 
distinctly found in that case that tho 
appellant Strughan had no intention to 
kill Upendra Mahto and that ho did not 
assist the actual murderers in any way to 
accomplish their object. In the absence 
of any evidence of common intention 
there could be no conviction under S. 302 
of the appellant Strughan for murder 
read with S. 84 of the Indian Penal Code. 
In the present case upon the evidence 
there can be no doubt that both Jugal 
and Harihar Singh had the common in- 
tention of assaulting Brahamdeo Singh 
and that Jugal was actually present and 
actively took part in the commission of 
bhe act by Harihar Singh. Upon the 
evidence in this case tho conviction of 
Jugal Singh under S. 324 read with S. 34 
is a proper conviction and there is no 
ground to interfere with his conviction or 
sentence either. 

The result is that the conviction and 
sentence of both the appellants are con- 
firmed and the appeal 13 dismissed. 

Appeal dismissed. 



A. I. R. 1926 Patna 184 



[1919] 20 'r~; L. J. ,289. 



BUCKNILL AND MACPHBRSON, JJ. 
Pearl Dai and others Appellants, 
v. 

Naimish Chandra Mitra and otTiers 
Respondents. 

Appeal Ko. 1372 of 1922, Decided on 
16th June 1925, from the appellate 
decree of the Sub-J. f Bhagalpur, D/- 15th 
July 1922. 

Registration Act, S. 49 A plaintiff permitting 
his agent to grant a lease and Induct lessee Into 
possession cannot Ic allowed to succeed merely on 
a pica that tin: document was not registered 
Kq uity Part performance . 

Where the manager of the plaintiffs asked for 
their consent to grant a lease for five years and 
got the permission in a very definite form from 
the plaintiffs by a letter authorizing him to grant 
the lease and the lessees were inducted into 
actual possession. 

Held : that the plaintiffs cannot be allowed to 
succeed against their own nominees to avoid the 
lease simply because the document which -was 
given by their agent to the lessee did not comply 
with the provisions of S. 49 of the Act, i.e., not 
registered as it would be most inequitable. 

[P. 186, C. 2] 

S. K. Alittei for Appellants. 

C 1 . M. Ayarwala and S. N. Sail aytor 
Bespondents. 

Bucknill, J. This is a second appeal.. 
The appellants were the plaintiffs in an ' 
action which they brought against a num- 
ber of defendants for a declaration of their 
(the plaintiffs') right, title and interest 
to the extent of two-thirds share in a 
mabal called Aratghat ; they also applied 
for recovery of khas possession to the 
extent of their share and they asked for 
an adjudication that the defendants first 
party were trespassers and had acquired 
no title as lessees to the ghat by virtue 
of any valid settlement made to them on 
behalf of the plaintiffs. The facts in the 
case are extremely simple and the large 
majority of them are not even in issue. 
The plaintiffs were the owners of two- 
thirds share in tbis mahal ; the principal 
value of this mahal appears to have lain 
in the fact that there was a ferry and 
that tolls were levied and collected at the 
ghat. It was the usual practice to let out 
the ghat to a lessee but it is said that 
sometimes the proprietors kept it in their 
own hands. Now, there is no doubt that 
the defendant second party 'was until 
some time in 1918 the Naib or manager 
of this property on behalf of the plaintiffs 
or some of them. In 1917 this Naib the 
defendant second party whilst in the 



1920 



PEAIU DAI V.'NAIMISH CHANDRA (Bucknill, J.) 



Patnft 185 



plaintiff's employment made a proposal 
to the plaintiffs with regard to the future 
letting out of the ghat ; a written applica- 
tion or proposal appears to have been made 
"fey the Naib to the proprietors saying that 
he had the opportunity of effecting a 
lucrative lease with some persons who 
he knew were anxious to acquire the 
arights in the ghat. The proposal con* 
tained the suggestion that these applicants 
would give Ks. 200 annually (which was 
considerably more than what up to that 
time had been paid) and that the lease 
should be for five years. The Naib asked 
for instructions and orders. This seems 
to have taken place on the 15th July 1917. 
Now, on the 31st July of that year an 
order was passed by the proprietors in 
connexion with this application ; it was 
simply to the effect "Naib will do the 
needful." This was followed later by a 
formal letter from the proprietors to the 
Naib definitely accepting the offer and 
telling him to issue a parwana to the new 
lessee. On the 1st October 1917 it seems 
that the Naib did give a hukamnama or 
parwana to the new lessees. 

The Munsif found all these circumstan- 
ces as facts. He found definitely that all 
these transactions had taken place. He 
found that the lessees had actually been 
put into possession ; he found that a quar- 
rel had arisen l^tween the plaintiffs and 
their Naib and that they had alleged 
that he had fraudulently granted this 
lease with their assent. This, however, 
he did not believe and he would undoubt- 
edly have given judgment for the defen- 
dants had it not been that he was led to 
form an opinion upon a point of law 
which is the only point which has been 
seriously argued before this Court. This 
point was that the defendants relied upon 
the parwana to which I have already re- 
ferred. It was urged before the Munsif 
that the lease or parwana must be regis- 
tered as it purported to be a lease of im- 
<movable property granted for five years 
and that, as it was not registered, it was 
impossible for it to be referred to or 
looked at by the Court and that in con- 
sequence the defendants were unable to 
prove that they had got any title. The 
Munsif, remarking that he could not see 
his way to invoke any equity in favour of 
^he defendants, held that there could 
have been no valid settlement by lease, 
^nd in consequence he decided in favour 
of the plaintiffs and ordered that their 



suit be decreed with costs. 

Now, this decision of the Munsif of 
Bhagalpur, which was dated the 22nd 
April 1921, was the subject of an appeal 
to the Subordinate Judge of that place 
who by his judgment of the 15th July 
1922 affirmed in every respect, save one, 
the decision to which the Munsif came. 
He, however, was of the opinion that it 
was not impossible to invoke equity in 
favour of the defendants and he came to 
the conclusion that it was necessary and 
proper to do so. 

In consequence, as a matter of course, 
he had to reverse the judgment of the 
Munsif ; he allowed the appeal and or- 
dered that the plaintiff's suit be dis- 
missed. 

The point which I have referred is the 
only point which is of any importance in 
this case. It has been argued very strenu- 
ously by the learned counsel who has 
appeared for the appellants that it is im- 
possible to invoke equity in favour of the 
defendant. He bases his argument upon 
S. 49 of the Indian Registration Act. This 
section reads : 

"No document required by S. 17 to be 
registered, shall 

(a) affect any immovable property 
comprised therein or 

(c) bo received as evidence of any trans- 
action affecting such property or con- 
ferring such power, unless it has been 
registered." 

Now, it is admitted here that this lease 
for five years ought to have been regis- 
tered. The learned counsel has suggested 
that as under the provisions of S. 49, 
sub-S. (c) a document required to be re- 
gistered shall not, unless registered, 
be received as evidence of any 
transaction affecting such property or 
conferring such power, this hukuinnama 
could not be looked at all by the Court 
nor could any equity be utilized as arising 
from it in favour of the defendant. He 
refers in this connexion to an instructive 
case Saiijib Chandra Sanyal v. Santosh 
Kumar Lahiri (l). The learned Judge 
(Mr. Justice Eankin) who decided that 
case held that he could not permit a docu- 
ment which was not registered but which 
ougbt to have been registered to be re- 
ceived in evidence as evidential of the 
title of a plaintiff who was seeking to 
Enforce his right under that unregistered 

(1) A J. 



186 Patatf 



PEARI DAI v. NAIMJSH CHANDRA (Bucknill, J.) 



1928 



document. On the other hand, however, 
a case of equal importance : Makomed 
Musa v. Aghvre .Kumar Ganguli (2), has 
been brought to our notice. That was a 
decision of their Lordships of the Privy 
Oouncil and there it was laid down very 
specifically, that "when the actings and 
conduct of the parties are founded upon, 
as in tho performance or part-perform- 
ance of an agreement, the locus peni- 
ientiae which exists in a situation where 
the parties stand upon nothing but an en- 
gagement which is not final or complete 
is excluded. For equity will support a 
transaction clothed imperfectly in those 
legal forms to which finality attaches after 
the bargain has been acted upon." Now, 
it is, of course, difficult to say definitely 
that equity will override completely the 
specific provisions of Ss. 17 and 49 of tne 
Indian Registration Act and in the case 
of Nilkanth Bhimaji v. Ilanmant 
Eknath (3), Mr. Justice Heaton in refer- 
ring to tho Privy Council case which I 
have just mentioned draws attention to 
the necessity of guarding oneself in stat- 
ing definitely that the decision of their 
Lordships was intended to affect adversely 
the proper construction or maintenance 
of those sections of the Registration Act 
to which reference has been made, His 
Lordship says : 

"I feel quite certain that their Lordships 
of the Privy Council in giving judgment 
in Mahomed Musa v. Ayliore Kumar Gan- 
guli (2) did not intend either to modify 
or to limit that part of tho enactment of 
the Indian Legislature, which appears as 
Ss. 17 and 49 of the Indian Registration 
Act, nor do I believe that the Privy Coun- 
cil ever have intended by their judgments 
to modify or limit that which has been 
enacted by the Legislature in India. So 
the effect of Ss. 17 and 49 of the Indian 
Registration Act remains as totally un- 
affected as before by anything that is 
said in the case of Mohamad Mii$a v. 
Aghore Kumar Ganguli (2)." 

Now in this case before us it seems to 
me tbftt it can be dealt with quite un* 
hampered by any question of admissibility 
|of this document. Personally I think 
that it is admissible and that equity can 
be^ Invoked from it although it should 

(Si) [1915] 4? Oal. 801^42 ~Ll.~1=f7~BOT. 
L.B. 420~<ft C,LJ. 231=28 M.L.J. 548= 
19 C.W.N. .250=13 A.L.J. 229=17 M.L.T. 
148=2 L.W. 258=r(1915) M.W.N. 621 (P.O.), 

(3) [1920] Ai Bom. 881,=:22 Bom, 992, 



have been registered and that we could 
draw an equity in favour of ,jbhe defen- 
dant* But even if it was not admissible 
there was ample material upon which a 
Court may come to the same conclusion to* 
which the Subordinate Judge has come,, 
namely, that the equity here is clearly in; 
favour of the defendant and must be given.- 
to him in relief. What have we here ia 
coming to the same conclusion from 
another point of view ? We have find- 
ings of fact which, show clearly that the 
Naib, that is to say, the manager of i<he 
plaintiffs asked for their consent to grant 
a lease for five years at Rs. 200 per 
annum to the lessees. Ho got t.his per- 
mission in a very definite form from the 
proprietors and he actually put the les~ 
sees into possession, The terms upon 
which tho lease was to be granted appear 
clearly not only in what ho offered in the/ 
application for instructions which the- 
Kaib made to the proprietors bufr 
in the proprietors' letter authorizing, 
him to grant the lease. .How it- 
can be seriously suggested after that*' 
that there was not a completed transac- 
tion not only on the iaco of the papers 
themselves but by a part performance, 
namely, the induction of the lessees into 
actual possession, I cannot understand, 
To allow the plaintiffs to succeed against 
their own nominees simnly because the 
document which was given by the plain- 
tiffs' agent to the new lessee did not 
comply with the provisions of S. 49 of the 
Registration Act would appear to me 
most inequitable. In these circumstances 
I think that in this case the Subordinate 
Judge has taken the proper course. He 
has come to the conclusion that there was- 
no ground for allowing the plaintiff to 
eject the defendants who were their own 
lessees. They could not take advantage 
of some flaw in a document which has 
been produced by the defendants in order 
to show that their lease did not comply 
with the terms of the Registration Act 
nor could it be allowed that the lease 
which the defendants possessed against 
their own landlord should be defeated at 
his application, 

I think, therefore, that this . appeal 
should be dismissed with costs, 

Macpherson, J, I agree to the order 
proposed : this appeal should be. dismissed 
with costs* 

Appeal dismissed. 



ISK SRI JUGAL SARKAR v. RAJ 
* A. I. R. 1926 Patna 187 

MULLICK AND KUIAVAKT SAHAY, JJ, 

Thakttrji Sri Jugal Sarlcar and others 
Plaintiffs Appellants, 
v. 

Raj Mangal Prasad and oth en Defen- 
dants Bespondents. 

Appeals Nos. 1314 and 1315 of 1922, 
Decided on llth November 1925, from 
the appellate decrees of the Sub'J., 
Muzaffarpur, D/- 22nd June 1922. 

^ (a) Riparian rights tpper owne* cannot 
Appropriate wlwle water of natural stream for 
Irrigation Such right can be acquired by pres* 
cription. 

For ordinary purposes such as drinking and 
watering cattle the upper proprietors are entitled 
to appropriate if necessary the whole of the water 
of a natural stream; but for extraordinary purposes 
such as the irrigation of their fields, they are enti- 
tled only to take so much as will not reasonably 
diminish the volume of water in the river [White 
v. White, (190G) A. C. 72.] But if a higher pro- 
prietor establishes that he has been in possession 
from time immemorial of the right to appropriate 
the whole of the water the law will not prevent 
him from acquiring the right. [P. 188, C. 1] 

(b) Easements Act, S. 17 Profits a prendre 
do not Include right to water. 

8. 17 is in tended to apply not not to rights of 
rrrigation in natural streams but to rights in the 
nature of profits a prendre which do not include 
a right to water. ^ [P. 188, C. l l] 

^ (c) CivllP.C., S. 100 Question of fact 
based on no evidence icill be Interfered icith. 

The High Court ought not to interfere in 
second appeal with a finding of fact so long as 
there is some evidence to support it, but wherf the 
1 ower Court has arrived at his findings without 
evidence and the trial is bad the High Court will 
interfere, [P. 188, C. 2] 

P. C. Manuk, /. P. Singh and Bhay 
wan Prasad for Appellants. 

S. M. MullicJc, L. K. Jha and S. Saran 
for Bespondents. 

Mullick, J. The plaintiffs in this 
litigation allege that a watercourse 
called the Mangrooha river, which flows 
past the villages of Madanpur, Azamgarh, 
Bacharpur and Manik Chauk from north 
to south is a natural stream and that the 
plaintiffs who are the residents of 
Bachapur have from time immemorial 
obstructed it by a bundh or dam* 
measuring 107 feet in length, 31 feet in 
breadth and 11 feet in height and that 
the defendants who are residents of 
Manik Qbauk and, Azamgarh have caused 
injury to them by cutting it. The plain- 



PRASAD (Mullick, J,) Patoa WT 

tiffs accordingly ask : (l) for a declaration 
that the defendants are cot entitled to 
out the dam ; (2) for a declaration that 
the plaintiffs are entitled to main* 
tain and repair the dam ; and (3) that the* 
defendants should be restrained by in* 
junction from interfering with the right 
of the plaintiffs to maintain and repair 
and from doing any acts harmful to them. 

The Munsil found that the water- 
course in question was not a natural 
stream. He also found that the 
plaintiffs had established that from time 
immemorial the dam in dispute of the 
dimensions claimed had been maintained 
by them for the irrigation of their fields. 
He accordingly decreed the suit. 

In appeal the Subordinate Judge dif- 
fered on all points. He held that the 
water-coarse was a flowing river and -that 
the defendants, the residents of Manik 
Chauk, had a right to use the water t6 
the same extent as the plaintiffs and that 
the plaintiffs had no right to maintain a 
dam of the dimensions claimed for the- 
purposes of irrigation so as to diminish 
the supply to which the defendants are 
entitled. He found that in fact the dam 
in question completely deprived the* 
defendants from any water at all. 

Against this judgment the plaintiffs 
prefer the present second appeals. 

Now the first question for decision i$ 
whether the water-course is or is not a- 
natural stream. The Munsif lias found* 
that the bed of the water-course has boons- 
ploughed up and cultivated in several 
places and that there are already two- 
dams existing to the north, one at Madan- 
pur and the other at Majhaulia. Evi 
dence was given by the plaintiffs to show 
that the water-course was fed by rain* 
water and apparently the view taken by 
the Munsif was that whatever may have 
been the original condition of the water 1 ' 
course the channel at present consists ol 
a series of pools which are filled with 
water only during the rains and to which* 
the law of natural streams does not 
apply. 

Now the Subordinate Judge has made.- 
a very inadequate examination of the evi- 
dence upon this point. He does not con- 
eider the grounds given by the Munsif for 
holding that no connected channel exists. 
Apparently the learned Subordinate Judge 
thinks that as the water -course ia called 
a nadi it must be a natural stream. In 
my opinion there has been an 4fttoi: of 



IS8 Patna SRI JUGAL SAKKAK T. BAJ* MANGAL PBASAD (Mullick, J.) 



procedure in the trial of this issue and 
the plaintiffs are entitled to a fuller 
examination of the evidence before the 
finding of the Munsif can be set 
aside. 

The next point is whether assuming 
that this is a natural stream the plain- 
tiffs have established a right to obstruct 
it to the injury of the defendants. Now 
the law on the subject in this province 
is well settled. For ordinary purposes 
such as drinking and watering cattle the 
plaintiffs are entitled to appropriate if 
nedessary the whole of the water ; but for 
extraordinary purposes such as the irri- 
gation of their fields they are entitled 
only to take so much as will not reason- 
ably diminish the volume of water in the 
river. The plaintiffs, however, contend 
that they are entitled either by twenty 
years' user as of right or by prescription 
to appropriate the whole of the water for 
irrigation purposes. The defendants 
contend that such an absolute right can- 
not be acquired either as an easement or 
an any other way, The learned Subordi- 
nate Judge accepts this view and relies on 
White v. \Vl\itv (l) In my opinion the 
.learned Subordinate Judge has taken an 
erroneous view of the decision in this case. 
There the higher proprietor claimed the 
right to appropriate as much water as he 
required for his mill on the ground that 
the Crown had given him a grant of tho 
whole water in the river, and the learned 
Judge held that suoh a grant was repug- 
nant to the ordinary law of riveis and 
could not 1)0 conceived and that the pro- 
prietor had established the user of only 
1,200 cubic foet of water per minute and 
that his claim to a prescriptive right to 
more than 6,000 cubic feet per minute or 
to as much water as he liked had failed. 
I^ord Eobertson in his judgment expressly 
points out that the rule of prescription is 
tantiini prescription quantum 2^os^essurn. 
It was nowhere held in that case that if a 
higher proprietor establishes that he has 
been in possession from time immemorial 
of the right to appropriate the whole of 
the water the law will not sanction his 
title to do so, So it has been held in 
W tight v. Howard (2) ; Mason v. Hill (3) 

(1) [1906] A. C. 72-75 L, J. P. C. 14=94 L. 

T. 65. 
<2) [1828] 57 E. R. 76=(1828) 1 Sim. and S. 

T. 190=rl L. J, 0. S. Oh. 34=24 R. R. 1G9. 
<3) 11832] 1UO E. R. 114, 



Debi Pratad v. Jaynath (4); and Salbhadra 
Prasad v. Sfceifcfc <zrA;a* -IZi (5). On the 
other hand it is contended on behalf of 
the defendants that the Indian Easements 
Act, though not applicable in this pro- 
vince, may be regarded for the purpose of 
ascertaining the general or common law 
principle applicable. S. 17 of the Indian 
Easements Act declares that a right 
which would tend to a total destruction 
of the subject of the right, or of the 
property on which, if the acquisition were 
made, liability would be imposed, can- 
not be acquired by prescription, and it is 
argued that the upper proprietor cannot 
be allowed to convert the river into a 
pond and thereby destroy the flowing 
stream. Here the right to appropriate 
the water is a negative easement appurten- 
ant to the land of the upper proprietor 
and the water, though diverted, is not 
destroyed. S. 17 of the Basements Act 
is intended to apply not to such rights 
but to rights in the nature of profits a 
prendre which do not include a right to 
w<iter. 1 do not think, therefore, that the 
principle of that section is applicable to 
this case. 

The law applicable here is either S. 26 
of the Indian Limitation Act of 1908 or 
the general law of prescription. Under 
that law every right peaceably enjoyed 
as an easement, and as of right without 
interruption for the prescriptive period, 
becomes absolute and indefeasible after 
the expiry of such period. The plaintiffs 
are, therefore, entitled to succeed if they 
can prove enjoyment as alleged for the 
necessary period. 

Apart from this question of law which, 
in rny opinion, has been wrongly decided 
by the learned Subordinate Judge there 
is a farther difficulty in the way of the 
respondents. Before the Munsif the 
parties went to trial on the issue whether 
the plaintiffs were entitled to maintain 
ft dam of the dimensions described in 
the plaint. The defendants made a 
categorical denial to the effect that no 
dam of any kind had ever existed at 
this place. The Munsif disbelieved the 
evidence that no bundli had existed 
and he found that the evidence as to 
dimensions was un rebut ted. On appeal 
the respondents shifted their ground and 
induced the learned Subordinate Judge 

(4) [1897J 24 Oal. 865^4 L 1760=37 M. L. jf 
120=1 0. W. N. 401=7 Bar, 909 (P. 0.). 

(5) [1906] 11 C. W. N. 85^4 0. L. J. 870, 



1826 SIR JUGAL SARKAK v, BAJ MANGAL PJ^ASAD (Mullick, J.) Patna 



to adopt a middle course, namely, that 
the plaintiffs bad proved a right to main- 
tain a " bundh," but that they had not 
proved that the bundh should be 107 feet 
long, 31 feet wide and 11 feet high. The 
learned Subordinate Judge states that 
the defendants allege that in 1321 the 
length as well as the height was altered 
by the plaintiffs so as to completely 
obstruct the water flowing down to their 
.village. We have been unable to find 
any authority for this statement. There 
is nothing in the written statement or 
the depositions to support this finding. 
Apart from the objection that a party 
cannot be allowed to plead inconsistent 
facts, or to give proof at variance with 
his pleading, it is clear that there is 
nothing in the evidence produced by the 
defendants upon which this inconsistent 
finding can be based. The learned Sub- 
ordidate Judge was no doubt competent 
to come to such a finding from the 
plaintiffs' own evidence, but on this point 
the evidence is one-sided and unrebutted 
as the Munsif puts it. Again the learned 
Subordinate Judge's statement that there 
is no evidence on behalf of the plaintiffs 
to prove that the bundh, as it exists at 
present, existed from before 1326, is quite 
contrary to the^ evidence recorded. It 
is 'true that one'witness, P. W. 2, states 
that the bundh was 160 feefe long, 31 feet 
wide and 11 feet high. It^is explained 
by the appellants here that " 160 " was a 
mistake for " 107 " the two words in Hindi 
bo express these lengths being very 
jimilar. Be that as it may, there was 
plenty of other evidence to the effect 
ihat the disputed bundh is the one which 
_ias existed from time immemorial. The 
learned Subordinate Judge has committed 
a mistake of record in saying that no 
such evidence existed. 

The other evidence upon which the 
Subordinate Judge has relied consists of 
certain documents filed by the defendants 
to show that in a dispute J between the 
villagers of Mad an pur and Manik Ghauk 
before -an Assistant Settlement Officer 
it was agreed that a diversion made /by 
the Madanpur villagers from a point 
north of the Madanpur bundh should 
not be kept completely elosed by means 
of a dam erected by the Madanpur vil- 
lagers, and that for a certain number of 
days the water in this diversion should 
be/ allowed to flow so as to go down south 
< to Manik Chauk. The learned Subordi- 



nate Judge infers from this that the 
bundh at Bacharpur could not hav 
been 160 feet long, 31 feet wide and 
. 11 feet high. It was found in that cast) 
that there was a " bundh " of some kind 
at Bacharpur and the learned Judge- 
infers from the conduct of the Manilc 
Chauk villagers that the bundh could; 
not have been high or long enough to> 
obstruct the whole of the water. Before 
coming to this finding we had to find 
that the diversion brought the water back 
into the channel above the Bacharpur 
bundh and that at the time of the Magis- 
trate's order the Manik Chauk people 
got * their water over or through this 
bundh. There is no such finding by tho- 
learned Subordinate Judge and the 
inference does not follow that because- 
the diversion through Madanpur was> 
allowed to be kept open for a certain 
number of days for the benefit of Manikc 
Chauk, therefore, the bundh at Baohharpur 
could not have been of the dimensions 
alleged in the plaint. The plaintiff R, on 
the other hand, assert that the water 
did not come back to the river but found ) 
its way to Manik Chauk if at all over the 
fields of Madanpur. The learned Subor- 
dinate Judge has, therefore, committed 
an error af law in drawing the inference. 

Further the plaintiffs are entitled' 
again to object that the defendants ought 
not to be allowed to give proof inconsis- 
tent with their pleading. 

It is no doubt; true that this Court 
ought not to interfere in second appeal 
with a finding of fact so long a there 
is some evidence to support it, but here 
it would seem that the learned Subor 
dinate Judge has arrived at his findings 
without evidence and t/hat the trial 
is bad. It is also not clear to what 
extent he has been affected by his errone- 
ous view as to the rights of a lower 
proprietor against a higher proprietor. 

The result is that in our opinion the 
appeals must succeed and the decree of 
the learned Subordinate Judge must be 
set aside. He will re-hear the appeals 
according to law, but the parties will not 
be entitled to adduce any further 
evidence. As no objection was taken to 
the competency of the defendants to 
adduce evidence to show that a dam of 
differ ant dimensions has been maintained 
by the plaintiffs the Subordinate Judgo 
.will be entitled to consider all the 
evidence adduced ,but he will of course 



190 Pitta* 



G. L P, BY Co. v. BAMESH^AR (Bucknill, J., 



1S26 



also take into consideration the inconsis- 
tency bdtween pleading And riroof as a 
factor in determining the weight to be 
attached to such evidence. There being 
no materials for giving the plaintiffs 
relief in re-jpect of any hundh of smaller 
dimensions their suit must either be 
decreed in full or dismissed. 

Costs will abide the result. 

Kulwant Sahay, J. I agree. 

Case remanded. 



A. 1. R. 1926 Patna 190 

ADAMI A^D But KNILL, JJ. 

G. I. P. By. C'o. Defendants- Appel- 
lants. 

v. 

1 Ramwhivar Prasad and another Plain- 
tiffs Respondents. 

Appeal No. 140 of, 1923, Decided on 1st 
July 1925, from the appellate decree of 
the Distiict Judge, Saran, D/- 27th 
November 1922. 

HallH'ay* fr', .V. 72 72 We Note RArfmlislnn 
of lots by Railway Jtallway Company need not 
prove the fact of loss Consignor must still prove 
low by neyligpiHe. 

In a nut bj cosigner where goods are sent 
under Riak Note B admission of -loss bv Rail- 
way diptn<k with proof of fact of loss but does 
not ichove th< plaintiff of his burden of proving 
loft* duo to neglect of Railway Companv. Smith 
Ltd. v. (! teat Wettenilly. Co., (1922) 1 1 C. 178, 
Ref. ami 45 Jlnni. 1'201, DW. [P 191 C 1] 

Mohammad Hasan Jan to? Appel- 
lants. 

Sarnhhu Saran. for Respondents. 

Bucknill, J. This U a second appeal. 
The appeal is from a decision of the 
District Judge of Saran, dated the 27th 
November 1922, by which he reversed a 
decision of the Munsif of Chapra, dated 
the 20th January of the same year. 

The appellants are the Great Indian 
Peninsula Railway Company through their 
Agent at Bombay ; the respondents are 
Bameshwar Prasad and another. The 
suit was one of the type with which all 
the Courts in India are sufficiently 
familiar ; it was for recovery of a sum of 
money from the Great Indian Peninsula 
Railway for the price of a bale of cotton 
goods which should have been delivered 
to the plaintiffs but which was never 
delivered to them. 



The plaintiffs, in their plaint, after 
setting out the facts, alleged that they 
believed that the bale (which was a por- 
tion of a consignment of bales) had been 
lost in transit on account of the gross 
negligence of the defendants and they 
claimed that the defendants were bound 
to indemnify them for the loss. There 
was no doubt that the consignment of 
bales of goods was sent from some mer- 
chants in Bombay to the plaintiffs who 
were cloth dealers in Chapra ; there is 
equally no doubt that the goods were 
delivered to the appellants at Victoria 
Terminus, Bombay, for carriage under 
the well-known Risk Note B. It w 
also a fact which is common ground that 
when the goods arrived at Chapra, one 
whole bale was found missing. Now in 
answer to the plaintiff's claim the appel- 
lants pleaded firstly that they admitted 
the loss but that the loss did not occur 
on their lino of Railway ; they alleged 
that they had handed over the goods 
intact to the East Indian Railway Com- 
pany which had not been made a party 
to the suit ; in any case they stated fur- 
ther that the loss was not due to the 
negligence of Railway servants. 

Now, when the case came before the 
Munsif, he came to the conclusion that 
the plaintiffs had entirely failed to prove 
negligence on tho part of the Railway 
Administration , and he, therefore, held 
that, on that view of the case, the suit 
must he dismissed. In this 'decision, 
he was, of course, following the 
numerous cases which have been de- 
cided in tho Courts in India and which 
are substantially all of one tenor, 
namely, that in a suit brought under such 
circumstances as this suit was brought, it 
is necessary that the plaintiff should 
show that the Railway Company is res- 
ponsible for the loss of goods. The Mun- 
sif, however, considered a somewhat 
curious question which does net seem to 
have been raised in tho 'pleadings but 
which appears to have been put forward 
in the course of the trial before him. It 
was suggested by the plaintiffs fchafc tho 
Risk Note was not binding on the parties 
because'it had been in fact signed by 
some person who had no authority so to 
do from the consignors in Bombay. Tho 
Munsif was of the opinion that the indi- 
vidual who in fact signed the Risk Note 
had no authority so to do given to him by. 
the consignors He, therefore, came lio 



G. L P. BY.?Ca V.BAMESHWAR (Bteknill, J.) 



191 



the conclusion that, as the Risk Note had 
not been signed by afty person who had 
authority to do so on behalf of the con- 
signors, it did not bind the parties and 
that, therefore, presumably the appellant 
Company was not able to avail itself of 
any of the exemptions in the Risk Note 
which purport <to exempt the appellant 
Company f rom iKalbility tinder the condi- 
tions therein specified. 

Now when ihe case went on appeal to 
the District Judge, the District Judge 
came to the conclusions precisely oppo- 
site on both these points to those at 
which the Munsif : had arrived. He was 
satisfied in the first place that the person 
who did sign the Risk Note clearly had 
authority 4 rom the consignors so to do ; 
although that authority was not an ex- 
press but an implied one. He, therefore, 
held that the plaintiffs were bound 'by it. 
I might, however, point out that there 
would still be another objection to the en" 
'deavourof the plaintiffs successfully to 
raise this' question. It is quite clear that 
with regard to the consignment as whole, 
the plaintiffs, by accept ing a large portion 
of the consignment, adopted the contract 
which is contained in the Risk Note "B"; 
they are, therefore, bound by that con- 
iract ; and whether, or not the person 
who signed it had the consignors' 
authority, the plaintiffs would not bo 
able now to contend that they were, or 
are, not bound by the terms of the special 
Contract embodied in that Risk Note~. 
Apart from that however, there is here 
also the finding of fact by the District 
JivJgo that the individual who signed the 
Risk Note did havo authority from the 
consignors. This finding is based upon the 
evidence which was given in the case on 
behalf of the plaintiffs themselves. 

With regard to the other question, 
that is to say, whether the plaintiffs had 
proved (what thoy were bound to proVe if 
they were to bo successful) negligence on 
the part of the appellants, the District 
Judge again differed from the Munsif. 
He came fio the conclusion, for certain 
reasons to which I will refer seriatim, that 
the plaintiffs bad patisfiei him that the 
loss was really due to the negligence of 
*the appellants. These reasons are three 
in number ono I* that the Company : pro- 
duced no evidence of any kind. I needl 
hardly point out that, according to the 
authorities both in India and in England 
arad notably in the case decided by the 



H6use of Lords in Smtfc Limited v. 
Great Western Railway Company (l), ifc 
is hot necessary- for the defendant Rail" 
way < Company in a case such as* this t') 
produce any evidence at all. Where a 
special contract is sued upon by a plain- 1 
tiff (such as in this suit wag sued upon) 
it is for the plaintiff to show that the 
Railway Company is liable to him for loss 
occasioned to the goods which had been 
carried by the Railway Company on his 
behalf. This reason, therefore, given by 
the learned District Judge is not a reason 
which could be properly held by him as 
being in any way evidential of negligence 
on the part of the appellant here. The 
second reason which ho gives is what he 
refers to as " the admitted facts " in the 
case. The only admitted facts in the 
case which are really material were 
the facts that the consignment wa3 
actually made, that the goods were en- 
trusted into the care of tho appellants, 
and that they were lost ; there were no 
other material facts admitted in the case 
and, from these facts alono, again thfc 
law is clear as laid down in this country 
and in England that no inference eviden- 
tial of negligence on the part of the 
appellant here could possibly bo drawn. 
The third, and undoubtedly the most 
important, reason which ho gives is whafe 
ho refers to as the " plaintiffs own evi- 
dence." Now if tho plaintiffs had pro- 
duced any witness who had been able to 
prove in any way that there had been 
any negligence of any kind on tho part of 
the appellant or by their Agents or ser- 
vants, (for a corporate body can only 
after all act through its Agents or ser- 
vants) there is little doubt but that the 
plaintiffs might havo succeeded. It is 
sufficient, however, I think for this Court 
to hold thafc, merely because the District 
Judge states that having regard to th 
t3laintiffs' own evidence no other reason* 
able conclusion can ba come to other than 
that the loss was due to the negligence of 
the Company's servants, the matter is by 
Such a statement precluded froip being 
considered in second appeal. In a case 
such as this it is important to see what 
in fact was said in evidence by any wit* 
ness who appeared for the plaintiffs In 
this case I fear that what wa* said by the 
only witness who appeared for the plain- 
tiffs wad in no sense any proof of negli* 

B, 4M&& 



A- 0. 178==91 L. J., 
Conk. Caa. 347=88 T. 



192 Patatft 



BAT is A KUAB v. BAJA EAM 



1926 



gence but only an assertion thereof. The 
only witness who was called by the plain- 
tiffs merely stated as follows. " Because 
the bale has not been delivered to me so 
I say that it has been lost on account of 
the negligence of the Railway Companies. 
(I may say that in the suit as originally 
brought the Bengal and North Western 
Railway Company through its Agent at 
Gorakhpur was a second defendant.) I 
need hardly, I think, point out that a 
more assertion of this kind is of no evi- 
dential value whatever as proof of negli- 
gence on the part of the appellant. If 
one was to hold that it was, all the diffi- 
culties which surround plaintiffs in 
bringing a suit of this kind, would at once 
disappear, for all that would be necessary 
for them to do, in order to throw the 
whole of the onus upon the defendant 
Company of bringing itself within the ex- 
ceptions in the Risk Note " B " which 
purport to exempt him from liability, 
would be to make a mere assertion by a 
witness on behalf of the plaintiffs that he 
believed that the loss which was admit- 
ted was due to the negligence of the 
Railway Company's servants. I think 
that it is obvious that such a statement 
as this is as of little evidential value in 
this case as are the other two reasons 
which have been given in the decision of 
the District Judge. The judicial com- 
ments which have been passed not only 
in this country but also in England upon 
the difficulties which a plaintiff, who has 
entered into a contract of the nature of 
Risk Note '* B " encounters, have been 
severe, and, if T may say so well founded 
But such strictures on a * Rail way Com* 
pany hardly properly lie within the 
domain of the Courts , for it is, I take it, 
always open to a person, who wishes to 
consign his goods for carriage by a Rail- 
way, not to enter into a contract such as 
is set out in the Risk Note " B >f which 
entails upon him such immense difficulties 
in the event of his wishing to recover 
from the Railway Company for loss or 
damage, of the goods which he has con- 
signed to it to take to their destination. 
By this time I think it ought to be 
publicly known that it would appear 
that the onus of proving wilful negligence 
lies upon the plaintiff who brings the suit 
for recovery of what has been losfc on & 
Railway Company's lines if he sues upon 
the special contract which is embodied in 
the Bisk Note " B. " It has been sugges- 



ted that in this particular case the mere 
admission by the Railway Company 06 
the loss is not sufficient to prove that loss 
and reference was made to a case decided 
by a Bench of the Bombay High Court 
[Ghelabha^ Punsi v. East Indian Rail- 
way Company (2)] in which their Lord- 
ships thought that a mere admission by * 
Railway Company in their favour that; 
the goods were lost was not sufficient to> 
prove that the goods had been in fact lost. 
I need only point out that this case wa* 
decided before the case in the House o 
Lords to which I have already referred. 
There the matter is fully dealt with and 

think that an admission of loss must be 
regarded as a position which it is open to' 
the defendant Railway Company to take, 
up. After all it does not appear to me 
that it is necessary for a person to give 
strict proof of what he himself admits. 
All the points in the present appeal have 
been recently dealt with by Mullick, J. 
and myself in the case of G. I. P. Rail- 
way Co. v. Jitan Earn Nirmal Earn (3). 

Under these circumstances, and I must 
confess with some sympathy for the res- 
pondents, I feel that the only possible 
course in this case is that the appeal must 
be allowed and the suit dismissed. 

There will be no order as to costs. 

Adami, J. I agree. 

Appeal allowed. 



(2) [1921] 45 Bom. 1261=23 Bom. L. R. 525. 
(8);A.U. R.1923 Patua 825. 



# A, I. R. 1926 Patna 192 

ADAMI AND SEN, JJ. 

ML Eatisa Kuei Plaintiff Appel- 
lant. 

v. 

Raja Ram Pandey and others Defeiv 
dants Respondents. 

Appeal No, 1231 of 1922, Decided on 
24th Juna 1925, from the appellate de- 
cree of the Addl. Sub.-J., Saran, D/- 18th 
August 1922. 

j[C (a) Adverse possession Pica of, may fy 
raised In appeal for t)ie first time \ If based on ori- 
ginal pleadings. 

Ordinarily the principle holds good that adversb 
possession should be distinctly raised in the plead* 
ings and should also form the subject-matter of an 
isau*, but a potty may be allowed to succeed on a 



1926 



BATISA 



v. RAJA KAM (Sen, J.) 



Patna 193 



title by adversa pos^ssion pleaded for tin first 
time in, ths C^urt of appeal if snch a CAS 3 arisas ou 
Jasts statad io the pleading* and tha party is not 
taken by surprise [P 193 C 2 ; P 194 C 1] 

(b) Limitation Act, S. 9 Limitation, begun in 
lifetime of full owner is not suspended on hi 3 
death. 

Limitation having once cominanead to ru.i in 
the lifetime of a full owner cannot ba taksn to b3 
suspanded if he dies and is isuc^saded by -a limited 
owner. (P 191 C 1] 

N. N. Sinha for Appellant;. 

H. N. Prastd for Respondents. 

Sen, J. This . appeal arises out of a 
suit by the plaintiff-appellant for a de- 
claration that a deed of zerpeshgi, dated 
the 20th December 1907, executed by Mt. 
Inderbiso in favour of the Defendant No. 
1, was fraudulent and collusive and with- 
out legal necessity ; that the said mort- 
gagor had no right or title to execute the 
zerpeshgi deed and that, therefore, it was 
not operative on plaintiff who had inher- 
ited the land in dispute from her father 
Sadhu Dubey. 

The case of the plaintiff was that one 
Sheo Dubey had two sons, Nakched and 
Ohulhai ; that Nakched "had a son Dukhi 
Dubey and Chulhai had a son Sadhu 
Dubey ; that Dukhi and Sadhu were joint; 
that Dukhi died and Sadhu came into the 
family property by survivorship ; that 
after Sadhu's death his widow Mt. Jharo 
succeeded her, and that after Mt. Jharo 
the plaintiff inherited the property in suit 
from her father. The plaintiff alleged 
that Inderbaso Kuor, the widow of Dukhi, 
illegally and fraudulently executed a deed 
of zerpeshgi, dated the 20Lh December 
1907, In favour of her brother, the Defen- 
dant No. 1, who in turn assigned the 
mortgage in favour of Defendant No. 2. 
The case for the defence was that the 
plaintiff was not the daughter of Sadhu 
and Jharo ; that Dukhi and Sadhu were 
not joint when Dukhi died ; that upon 
Dukhi's death Inderbaso Kuer succeeded 
to his property and upon her death her 
daughter Sona Kuer succeeded. The De- 
fendant No. 1 alleged that he was the 
daughter's son of Inderbaso, that is, the 
son of Sona Kuer and not the brother 
of Inderbaso Kuer, as alleged by the plain- 
tiff. 

The learned Munsif held that the 
plaintiff was the daughter of Sadhu 
Dubey ; that the zerpeshgi deed was frau- 
dulent and collusive ; that Dukhi died 
whilst living joint with Sadhu and that 
Defendant No. 1 is the brother of Inder- 
1926 P/25 & 26 



biso ; and he decreed the suit. On ap- 
peal, the leirned 'Subordinate Judge 
affirmed the finding that the plaintiff- was 
the daughter of Sadhu ; but he held that, 
even assuming that Inderbaso, the mort- 
gagor of Defendant No. 1, had no title to 
the land in suit, the Defendant No. 1, 
having got possession of the land in 1907 
on the basis of his zerpeshgi, and having 
continued in possession for 'over 12 years 
his title was perfected by adverse posses- 
sion. He, therefore, allowed the appeal 
and dismissed the suit. 

It is contended before us : first, that the 
question of adverse possession was not in 
issue and that the Court of appeal was not 
competent to raise it or pass his decision 
on it ; secondly, that the question whe- 
ther Dukhi or Sadhu were joint or sepa- 
rate was not gone into by the Court of ap- 
peal ; that he should have gone into the 
question fully. 

There is no doubt that title -by adverse 
possession does not appear to r have been 
raised in the pleadings, but the principle 
has often been laid down that a party may 
be allowed to succeed on a title by adverse 
possession pleaded for the first time in the 
Court of appeal if such a case arises on 
facts stat